[2019] KEHC 5876 (KLR)
The High Court declined to entertain the application for re-sentencing because the applicant's appeal against conviction and sentence was still pending before the Court of Appeal. The court held that it would be inappropriate to grant the order sought while the appellate process was ongoing, as the applicant had not...
Source-derived case information.
- Citation
- [2019] KEHC 5876 (KLR)
- Parties
- Applicant: Munyao Kalenga; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kitui
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application 80 of 2018
- Procedural Posture
- Criminal Miscellaneous Application / Ruling on Application for Re Sentencing Pending Appeal
- Outcome
- application dismissed
- Judges
- LN Mutende
- Legal Topics
- Murder Sentencing, Resentencing Jurisdiction, Pending Appeal Effect, Supreme Court Guidelines
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Munyao Kalenga
Applicant
Republic
Respondent
Procedural Posture
Criminal Miscellaneous Application / Ruling on Application for Re Sentencing Pending Appeal
Legal Issues
- 1 Whether the High Court has jurisdiction to re-sentence an applicant convicted of murder when an appeal is pending before the Court of Appeal.
- 2 Whether the Supreme Court decision in Muruatetu applies to the applicant's case at this stage.
Ratio Decidendi
The High Court declined to entertain the application for re-sentencing because the applicant's appeal against conviction and sentence was still pending before the Court of Appeal. The court held that it would be inappropriate to grant the order sought while the appellate process was ongoing, as the applicant had not exhausted the appellate jurisdiction. The court recognized the Supreme Court's decision in Muruatetu regarding the unconstitutionality of the mandatory death sentence, but found that the proper forum for addressing the applicant's sentence was the Court of Appeal, where the matter was actively pending. Accordingly, the application for re-sentencing was dismissed.
Court Disposition
application dismissed
Orders
- The application for re-sentencing is dismissed.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITUI
CRIMINAL MISC. APPLICATION NO. 80 OF 2018
MUNYAO KALENGA...............APPLICANT
VERSUS
REPUBLIC.............................RESPONDENT
R U L I N G
1. Munyao Kalenga,the Applicant was charged with the offence of Murder.After being taken through full trial he was found guilty, convicted and sentenced to death.
2. Aggrieved he appealed to the Court of Appeal where the matter is pending.
3. On 26th November, 2018,the Applicant approached this Court by way of Chamber Summons seeking re-sentencing pursuant to the decision of the Supreme Court in Petition No. 15 of 2015, Francis Karioko Muruatetu and Another vs. Republic (2017) eKLR.
4. The Application is premised on grounds that following his conviction by the High Court, his sentence was commuted to life imprisonmentin 2016following the presidential decree but following the decision of the Muruatetu Casethis Court has the jurisdiction to impose an appropriate sentence.
5. In response the learned State Counsel was of the view that the Application could be considered.
6. In his oral submission the Applicant told the Court that he has appealed to the Court of Appeal and he is waiting to be notified of the status of the Appeal. The fact that the Appeal is pending hearing means that the Applicant is yet to exhaust the Appellate jurisdiction.
7. I do appreciate the fact that the Supreme Court reached a finding that death sentence is unconstitutional. But, in the instant case, since the matter is pending before the Court of Appeal it would not be appropriate for me to grant the order sought.
8. In the premises the Application stands dismissed.
9. It is so ordered.
Dated, Signed and Delivered at Kitui this 26th day of June, 2019.
L. N. MUTENDE
JUDGE