[2020] KEHC 5648 (KLR)
The High Court lacks jurisdiction to entertain an application for re-sentencing where the trial court has already considered mitigation and imposed the maximum sentence for murder based on the circumstances of the offence, rather than on the mandatory nature of the death penalty. The applicant's remedy lies in...
Source-derived case information.
- Citation
- [2020] KEHC 5648 (KLR)
- Parties
- Applicant: Musya Mulyungi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application 85 of 2019
- Procedural Posture
- Criminal Miscellaneous Application / Ruling on Application for Re Sentencing
- Outcome
- application dismissed
- Judges
- CM Kariuki
- Legal Topics
- Murder Sentencing, Death Penalty, Resentencing Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Musya Mulyungi
Applicant
Republic
Respondent
Procedural Posture
Criminal Miscellaneous Application / Ruling on Application for Re Sentencing
Legal Issues
- 1 Whether the High Court has jurisdiction to re-sentence the applicant after conviction and sentencing for murder.
- 2 Whether the sentence imposed by the trial court was based on the mandatory aspect of the death penalty or on the circumstances of the offence.
Ratio Decidendi
The High Court lacks jurisdiction to entertain an application for re-sentencing where the trial court has already considered mitigation and imposed the maximum sentence for murder based on the circumstances of the offence, rather than on the mandatory nature of the death penalty. The applicant's remedy lies in appealing to the Court of Appeal, not in seeking re-sentencing before the High Court. The application is therefore dismissed for want of jurisdiction.
Court Disposition
application dismissed
Orders
- The application for re-sentencing is dismissed.
- The applicant may seek leave to appeal against the sentence in the Court of Appeal.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT GARISSA
CRIMINAL MISC. APPLICATION NO. 85 OF 2019
MUSYA MULYUNGI......................................................APPLICANT
VERSUS
REPUBLIC....................................................................RESPONDENT
RULING
1. The applicant was charged with murder and after hearing he was convicted and sentenced to death on 19/12/2018.
2. The trial court after considering mitigations sentenced the applicant to suffer death.
3. He has now moved this court for re-sentencing. The applicant relied on the case of Supreme Court Francis Karioko Muruatetu & Another vs Republic [2017] eKLR.
4. The essence of the Muruatetu case was that death sentence is not illegal but only mandatory aspect which may make trial court not to consider mitigation as tendered. The Supreme Court in the Muruatetu case (Supra) held that although the mandatory death penalty having been declared unconstitutional, the death penalty still exists as the maximum sentence for murder under Section 203 and 204 of the Penal Code.
5. In the instant case the trial court was alive to that fact thus held that, “I have considered that the accused has no record of previous conviction as thus a first offender. Also the mitigations highlighted by his advocate…. However……accused used knife knowingly full well deceased was unarmed…..This was a care free attitude…….” Then sentenced the applicant to death. The sentence awarded was maximum penalty after considering mitigations.
6. This above order was made not based on mandatory aspect of death sentence but the circumstances of murder. This order ought to have been challenged in the Court of Appeal.
7. This court has no jurisdiction to deal with the instant matter. The applicant can seek leave and appeal against death sentence in Court of Appeal.
8. Thus, application is dismissed.
DATED, DELIVERED AND SIGNED AT GARISSA THIS 27TH DAY OF MAY, 2020.
……………….………………
C. KARIUKI
JUDGE