[2020] KEHC 2000 (KLR)
The High Court lacks jurisdiction to review or re-sentence a matter where the Court of Appeal has already substituted the sentence, especially where the appellate court has expressly considered the Supreme Court's guidance in Muruatetu. The application for re-sentencing is therefore an abuse of process and legally...
Source-derived case information.
- Citation
- [2020] KEHC 2000 (KLR)
- Parties
- Applicant: Michael Ashene Omido; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 94 of 2019
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Re Sentencing After Court of Appeal Judgment
- Outcome
- application dismissed
- Judges
- CM Njagi
- Legal Topics
- Resentencing, Robbery With Violence, Mandatory Sentences, Jurisdiction of High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Michael Ashene Omido
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Re Sentencing After Court of Appeal Judgment
Legal Issues
- 1 Whether the High Court has jurisdiction to re-sentence an applicant after the Court of Appeal has already substituted the sentence based on the Supreme Court decision in Muruatetu.
- 2 Whether the application for re-sentencing is merited in light of the prior appellate decisions.
Ratio Decidendi
The High Court lacks jurisdiction to review or re-sentence a matter where the Court of Appeal has already substituted the sentence, especially where the appellate court has expressly considered the Supreme Court's guidance in Muruatetu. The application for re-sentencing is therefore an abuse of process and legally untenable. The proper recourse for the applicant, if aggrieved by the Court of Appeal's decision, would have been to move to the Supreme Court, not to seek review by the High Court.
Court Disposition
application dismissed
Orders
- The application for re-sentencing is dismissed in its entirety.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
MISC. CRIMINAL APPLICATION NO. 94 OF 2019
MICHAEL ASHENE OMIDO..........................APPLICANT
VERSUS
REPUBLIC...................................................RESPONDENT
RULING
1. The applicant was convicted by the lower court for the offence of robbery with violence contrary to Section 296 (2) of the Penal Code and sentenced to suffer death. His appeal to the High Court was unsuccessful. He then moved to the Court of Appeal which upheld the conviction but set aside the sentence of death and substituted it with 25 years imprisonment. In so doing the court said that it had considered that the mandatory death sentence is now unconstitutional as held by the Supreme Court in the case of Francis Karioko Muruatetu & Another –V- Republic (2017) eKLR.
2. The applicant has now come back to the High court seeking for re-sentencing, ostensibly on the basis of the Supreme Court decision in the Muruatetu Case. The application is based on the grounds that he has been in prison for 14 years and that he is reformed.
3. The Court of Appeal judgment for the applicant was delivered on 31st July, 2019. The Muruatetujudgment was delivered by the Supreme Court in 2017. The Court of Appeal substituted the death sentence imposed on the applicant on the basis of the Supreme Court decision in the Muruatetu case that the mandatory death sentence is now unconstitutional. The appeal court stated that it had considered all the circumstances of the case before imposing the sentence of 25 years.
4. In essence, what the applicant is seeking in the disguise of re-sentencing, is for this court to review the Court of Appeal’s sentence. It is an abuse of the court process for the applicant to approach this court, a court subordinate to the Court of Appeal, asking it to review the sentence imposed by the Court of Appeal. This court has no power to do so. If the applicant was aggrieved by the decision of the Court of Appeal, the option was to move to the Supreme Court. It is then clear that the application is legally untenable.
5. The upshot is that the application lacks merit. The same is dismissed in its entirety.
Delivered, dated and signed at Kakamega this 14th day of October, 2020.
J. NYAGA NJAGI
JUDGE
In the presence of:
Mr. Mutua for respondent
Applicant - present through video link to G.K. Prison, Kakamega
Court Assistant - Polycap