[2021] KEHC 2282 (KLR)
The court held that it lacked jurisdiction to entertain the applicant's request for his sentence to run from the date of arrest, as this issue should have been raised during the appeal process. The application was not based on the Muruatetu decision, which is limited to mandatory sentences in murder cases. Since the...
Source-derived case information.
- Citation
- [2021] KEHC 2282 (KLR)
- Parties
- Applicant: Martin Kwaera; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E007 of 2021
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Sentence Computation
- Outcome
- application dismissed for want of jurisdiction
- Judges
- DN Musyoka
- Legal Topics
- Sentencing Principles, Jurisdiction of High Court, Appeals and Review
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Martin Kwaera
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Sentence Computation
Legal Issues
- 1 Whether the High Court has jurisdiction to reconsider the applicant's sentence after dismissal of his appeal.
- 2 Whether the applicant's sentence should run from the date of arrest.
Ratio Decidendi
The court held that it lacked jurisdiction to entertain the applicant's request for his sentence to run from the date of arrest, as this issue should have been raised during the appeal process. The application was not based on the Muruatetu decision, which is limited to mandatory sentences in murder cases. Since the applicant's appeal had already been dismissed, the High Court could not revisit the matter, as doing so would amount to giving the applicant a second opportunity to litigate issues that ought to have been canvassed on appeal. The court therefore declined to grant the orders sought and directed that the file be closed.
Court Disposition
application dismissed for want of jurisdiction
Orders
- The application is dismissed.
- The file is to be closed.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
MISCELLANEOUS CRIMINAL APPLICATION NO. E007 OF 2021
MARTIN KWAERA........................................................................................APPLICANT
VERSUS
REPUBLIC..................................................................................................RESPONDENT
RULING
1. This matter was placed before me for the purpose of giving directions, in view of the recent decision by the Supreme Court in Francis Karioko Muruatetu & another vs. Republic; Katiba Institute & 5 others(Amicus Curiae[2021] (Koome CJ&P, Mwilu DCJ&VP, Ibrahim, Wanjala, Ndung’u & Lenaola SSJJ), with respect to mandatory sentences, where it was clarified that the decision, in Francis Karioko Muruatetu & another vs. Republic[2017] eKLR (Maraga CJ&P, Mwilu DCJ&VP, Ojwang, Wanjala, Njoki and Lenaola SCJJ), had arisen from proceedings relating to murder, under section 204 of the Penal Code, Cap 63, Laws of Kenya, and the position stated in the said decision was intended to apply only to mandatory sentences with respect to murder cases.
2. The application herein, the Motion dated 4th January 2021, does not appear to be based on Francis Karioko Muruatetu & another vs. Republic[2017] eKLR (Maraga CJ&P, Mwilu DCJ&VP, Ojwang, Wanjala, Njoki and Lenaola SCJJ). The applicant had lodged an appeal against his conviction by the trial court, in Kakamega HCCRA No. 100 of 2009. It would appear that the appeal was dismissed.
3. What he seeks by the undated Motion, but filed herein on 6th January 2021, is for an order that his sentence ought to run from the date of his arrest. The applicant had an opportunity to appeal. The issue he raises now ought to have been placed before the appellate court for consideration. He is in effect asking this court to hear him a second time on issues he should have canvassed during the hearing of his appeal. It is what taking a second bite at the cherry is about. That is not available now. I have no jurisdiction to sit on the matter for a second time. The file to be closed.
4. The Deputy Registrar to cause copies of this ruling to be availed to the applicant and the office of the Director of Public Prosecutions.
PREPARED, DATED AND SIGNED AT KAKAMEGA THIS 12TH DAY OF NOVEMBER, 2021
W MUSYOKA
JUDGE