[2024] KEHC 681 (KLR)
The High Court found that it was functus officio, having already considered the petitioners' mitigation at the time of sentencing and after the dismissal of their appeal by the Court of Appeal. The court held that the petitioners could not seek to rely on the Supreme Court's Muruatetu decision for a second...
Source-derived case information.
- Citation
- [2024] KEHC 681 (KLR)
- Parties
- Appellant: Andrew Kiprotich Mustuni; Appellant: Titus Cheprey Mongoti; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition 81 of 2019
- Procedural Posture
- Criminal Petition / Judgment
- Outcome
- petition dismissed
- Judges
- DK Kemei
- Legal Topics
- Resentencing, Murder Conviction, Mitigation, Functus Officio, Supreme Court Guidance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Andrew Kiprotich Mustuni
Appellant
Titus Cheprey Mongoti
Appellant
Republic
Respondent
Procedural Posture
Criminal Petition / Judgment
Legal Issues
- 1 Whether the High Court has jurisdiction to resentence the petitioners after their appeal was dismissed by the Court of Appeal and mitigation was previously considered.
- 2 Whether the petitioners can rely on the Supreme Court decision in Muruatetu to seek resentencing after exhaustion of appeal processes.
Ratio Decidendi
The High Court found that it was functus officio, having already considered the petitioners' mitigation at the time of sentencing and after the dismissal of their appeal by the Court of Appeal. The court held that the petitioners could not seek to rely on the Supreme Court's Muruatetu decision for a second opportunity at resentencing, as the mitigation had already been considered and the sentencing discretion exercised. The court concluded that it lacked jurisdiction to entertain the petition for resentencing and dismissed the application for lack of merit.
Court Disposition
petition dismissed
Orders
- The petition for resentencing is dismissed.
Full Case Text
Judgment text and source record
21 paragraphs
Mustuni & another v Republic (Criminal Petition 81 of 2019) [2024] KEHC 681 (KLR) (31 January 2024) (Judgment)
Neutral citation: [2024] KEHC 681 (KLR)
Republic of Kenya
In the High Court at Bungoma
Criminal Petition 81 of 2019
DK Kemei, J
January 31, 2024
Between
Andrew Kiprotich Mustuni
1st Petitioner
Titus Cheprey Mongoti
2nd Petitioner
and
Republic
Respondent
Judgment
1. The Petitioners herein have filed the present Petition on August 1, 2020 seeking for a re- sentencing in respect of Bungoma High Court Criminal case (Murder) No. 48 of 2008. Their gravamen is that they were convicted and sentenced to life imprisonment. They later lodged an appeal to the Court of Appeal at Eldoret vide Criminal Appeal number 232 of 2011 which was dismissed on March 28, 2012. It is further their case that they are remorseful and regret having participated in the crime. They maintain that they have since reformed and have undergone numerous rehabilitation programs in line with the aims of sentencing. They have relied on the authority of the Supreme Court of Kenya in the case of Francis Karioko Muruatetu & 2 Others v R 20117) eKLR. Finally, they averred that they have since reformed and acquired several certificates.
2. Miss Mwaniki for the Respondent opposed the application for re- sentencing. She submitted that the court has no jurisdiction under Article 165 (b) of the constitution since this court is already functus officio. She added that the petitioners’ appeal to the Court of Appeal was dismissed. It was finally submitted that the Petitioners mitigation were duly considered during their sentencing. Learned counsel sought for the dismissal of the application.
3. I have given due consideration to the Petition and the oral submissions. It is not in dispute that the Petitioners have since exhausted their appeal processes after the Court of Appeal dismissed their appeal. It is also not in dispute that the decision of the Supreme Court of Kenya in the Muruatetu case ( Supra ) declared the mandatory nature of death sentence as unconditional and that the courts were not harmstrung as they had power to consider mitigating circumstances of offenders before passing an appropriate sentence. It is not in dispute that at the time of the sentence in 2011, the mandatory sentence for murder was death. It is also not in dispute that the mitigation of the accused persons was duly considered by the court which thereafter sentenced them to life imprisonment. It is also not in dispute that the offence herein was committed during the uprising by the Sabaot Land Defence Forces, a ragtag army of locals within Mt Elgon who were opposed to their land being taken away by non- locals. It is also not in dispute that the said ragtag army caused a lot of untold suffering to the residents of Mt. Elgon before the Government unleashed the army which finally annihilated the ragtag group. The court had considered all these factors as well as the mitigation of the petitioners before it came to the sentence of life imprisonment. It is my considered view that once the mitigation by the petitioners have been duly considered by the court, they are barred from seeking to rely on the Muruatetu case (Supra) for a second bite at the cherry. This court is already functus officio.
4. In view of the foregoing observations, it is my finding that the Petition lacks merit. The same is dismissed.
DATED AND DELIVERED AT BUNGOMA THIS 31ST DAY OF JANUARY 2024D. KEMEIJUDGEIn the presence of :-Andrew K Mustuni 1st PetitionerTitus C Mongoti 2nd PetitionerMiss Kibet for RespondentKizito Court Assistant