[2024] KEHC 2454 (KLR)
The High Court lacks jurisdiction to entertain an application for resentencing where the applicant has already exhausted the appellate process up to the Court of Appeal. Once the Court of Appeal has determined the matter, the High Court becomes functus officio and cannot revisit or review the sentence. Entertaining...
Source-derived case information.
- Citation
- [2024] KEHC 2454 (KLR)
- Parties
- Applicant: Joseph Otieno Lwande; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kibera
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 26 of 2024
- Procedural Posture
- Criminal Revision / Ruling on Application for Resentencing
- Outcome
- application dismissed
- Judges
- DR Kavedza
- Legal Topics
- Robbery With Violence, Resentencing, Jurisdiction of High Court, Functus Officio, Abuse of Court Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Joseph Otieno Lwande
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Resentencing
Legal Issues
- 1 Whether the High Court has jurisdiction to resentence the applicant after the Court of Appeal has determined the matter.
- 2 Whether the application for resentencing constitutes an abuse of the court process.
Ratio Decidendi
The High Court lacks jurisdiction to entertain an application for resentencing where the applicant has already exhausted the appellate process up to the Court of Appeal. Once the Court of Appeal has determined the matter, the High Court becomes functus officio and cannot revisit or review the sentence. Entertaining such an application would undermine the hierarchy of courts and constitute an abuse of the court process. The applicant, having exhausted all avenues of appeal, cannot seek further relief from the High Court without leave.
Court Disposition
application dismissed
Orders
- The application for resentencing is dismissed.
- The applicant is directed not to file a similar application unless with the leave of court.
Full Case Text
Judgment text and source record
19 paragraphs
Lwande v Republic (Criminal Revision 26 of 2024) [2024] KEHC 2454 (KLR) (12 March 2024) (Ruling)
Neutral citation: [2024] KEHC 2454 (KLR)
Republic of Kenya
In the High Court at Kibera
Criminal Revision 26 of 2024
DR Kavedza, J
March 12, 2024
Between
Joseph Otieno Lwande
Applicant
and
Republic
Respondent
Ruling
1. The applicant filed a notice of motion application seeking resentencing. The application is supported by an affidavit sworn by the applicant. The averments made in support of the application are that is remorseful for the crime committed. He urged the court to resentence him.
2. In his pleadings, the applicant contended that he was charged and convicted for the offence of robbery with violence contrary to section 296 (2) of the Penal Code. He was sentenced to death. He appeal to the High Court in Nairobi Criminal Appeal No. 100 of 2007 was dismissed. In Criminal Appeal No. 33 of 2021 to the Court of Appeal was also dismissed. He maintains that he has been in prison for twenty (20) years which is adequate rehabilitation. He urged the court to resentence him.
3. I have considered the application, the affidavit in support and the applicable law. From the record, I note that the matter was already handled by the Court of Appeal. If this court ventures into handling the application on its merits would be tantamount to a disregard for the hierarchy of courts. This court has no jurisdiction to supervise a superior court. As noted above, this court has already discharged its duty and became functus officio. I do not understand why the applicant having exhausted his avenues of appeal has come back to this court unless he is intent on abusing the court process.
4. As a result, the application is dismissed. The applicant is directed not to file a similar application unless with the leave of court.Orders accordingly.
RULING DATED AND DELIVERED VIRTUALLY THIS 12TH DAY OF MARCH 2024D. KAVEDZAJUDGE