[2023] KEHC 3147 (KLR)
The High Court held that it cannot entertain a petition for resentencing or any other relief in a criminal matter where an appeal is still pending before the Court of Appeal. The applicant's claim that he withdrew his appeal was unsupported by evidence, and in the absence of a formal withdrawal, the appeal remains...
Source-derived case information.
- Citation
- [2023] KEHC 3147 (KLR)
- Parties
- Applicant: Kennedy Ngesa Marenya; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition E002 of 2023
- Procedural Posture
- Criminal Petition / Judgment
- Outcome
- petition dismissed
- Judges
- RE Aburili
- Legal Topics
- Murder Conviction, Mandatory Death Sentence, Prematurity of Petition
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kennedy Ngesa Marenya
Applicant
Republic
Respondent
Procedural Posture
Criminal Petition / Judgment
Legal Issues
- 1 Whether the High Court can entertain a petition for resentencing where an appeal is pending before the Court of Appeal.
- 2 Whether the petition is premature in light of the pending appeal.
Ratio Decidendi
The High Court held that it cannot entertain a petition for resentencing or any other relief in a criminal matter where an appeal is still pending before the Court of Appeal. The applicant's claim that he withdrew his appeal was unsupported by evidence, and in the absence of a formal withdrawal, the appeal remains pending. The petition was therefore found to be premature and untenable. The applicant is at liberty to file a fresh petition after the conclusion of the appeal.
Court Disposition
petition dismissed
Orders
- The petition is dismissed as premature.
- The file is closed.
Full Case Text
Judgment text and source record
22 paragraphs
Marenya v Republic (Criminal Petition E002 of 2023) [2023] KEHC 3147 (KLR) (12 April 2023) (Judgment)
Neutral citation: [2023] KEHC 3147 (KLR)
Republic of Kenya
In the High Court at Kisumu
Criminal Petition E002 of 2023
RE Aburili, J
April 12, 2023
Between
Kennedy Ngesa Marenya
Applicant
and
Republic
Respondent
Judgment
1. The Petitioner herein is Kennedy Ngesa Marenya. Vide his Petition filed on February 9, 2023 supported by his sworn affidavit and written submissions, he claims that he was convicted and sentenced to death for the offence of murder vide Kisumu HCR Case No 22 of 2011 by D S Majanja J and that he appealed to the Court of Appeal vide Court of Appeal Criminal Appeal No 97 of 2018. He was cited the sentencing remarks by Majanja J wherein the learned Judge after hearing mitigation of the Convict, he stated that he had no option in imposing the only sentence upon conviction of murder which is death.
2. This was on November 17, 2017 before the Supreme Court pronounced itself on the unconstitutionality of the mandatory nature of death sentence.
3. I however note that the appeal pending before the Court of Appeal has not been heard and determined and the Petitioner’s allegation that he wrote a notice of withdrawal is not backed by any such notice of withdrawal of appeal.
4. I find this Petition to be premature and untenable as this court cannot consider sentence in a matter which is pending before a superior court.
5. The petition is hereby dismissed although the Convict can file a fresh petition after conclusion of the Court of Appeal CRA No 97 of 2018.
6. This file is hereby closed.
7. I so order.
Dated, Signed and Delivered at Kisumu this 12thDay of April, 2023R E ABURILIJUDGEPage 2 of 2