[2024] KEHC 13497 (KLR)
The court found that the applicant's request for further resentencing under Section 333(2) of the Criminal Procedure Code had already been expressly considered and determined in a previous petition (Kisumu Petition No. 62 of 2019), where the applicant's pre-conviction custody was taken into account and his sentence...
Source-derived case information.
- Citation
- [2024] KEHC 13497 (KLR)
- Parties
- Applicant: Lucas Ochieng Mwalo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E199 of 2024
- Procedural Posture
- Miscellaneous Criminal Application / Ruling
- Outcome
- application dismissed
- Judges
- MS Shariff
- Legal Topics
- Resentencing, Death Penalty, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lucas Ochieng Mwalo
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling
Legal Issues
- 1 Whether the applicant is entitled to further resentencing under Section 333(2) of the Criminal Procedure Code after a previous resentencing decision.
- 2 Whether the application constitutes an abuse of court process.
Ratio Decidendi
The court found that the applicant's request for further resentencing under Section 333(2) of the Criminal Procedure Code had already been expressly considered and determined in a previous petition (Kisumu Petition No. 62 of 2019), where the applicant's pre-conviction custody was taken into account and his sentence reduced from death to a definite term of 20 years. The court held that it is now functus officio and the matter is res judicata, as it had been conclusively determined by a court of competent jurisdiction. The court further held that the applicant's repeated attempts to reopen the issue constitute an abuse of court process, and that judicial proceedings must come to a closure....
Court Disposition
application dismissed
Orders
- The application is dismissed.
- This file is marked as closed.
Full Case Text
Judgment text and source record
20 paragraphs
Mwalo v Republic (Miscellaneous Criminal Application E199 of 2024) [2024] KEHC 13497 (KLR) (4 November 2024) (Ruling)
Neutral citation: [2024] KEHC 13497 (KLR)
Republic of Kenya
In the High Court at Kisumu
Miscellaneous Criminal Application E199 of 2024
MS Shariff, J
November 4, 2024
Between
Lucas Ochieng Mwalo
Applicant
and
Republic
Respondent
Ruling
1. The Applicant Lucas Ochieng Mwalo was initially convicted of murder and sentenced to suffer death penalty in Kisumu High Court Criminal Case No. 61 of 2011.
2. In the year 2019 the Applicant petitioned the High Court in Kisumu Petition No. 62 of 2019 for resentencing on grounds that his death sentence was unconstitutional. Justice T. W. Cherere then duly considered his petition and expressly took into account inter alia the pre-conviction term of 5 years that Applicant had served when she reduced his sentence from death to a definite custodial term of 20 years. This court is thus functus officio and the issue of Section 333(2) is res judicata as it had already been determined by a court of competent jurisdiction between the parties. The Applicant cannot keep reopening this issue at his own convenience dependent on when there is a new Judge on the block.
3. The Applicant’s conduct is what we call abuse of court process. This court will not countenance such abuse. Court proceedings must come to a closure and the Applicant’s case indeed came to a closure.
4. On the balance this application is devoid of merit and I thus dismiss it.
5. This file is marked as closed.
DELIVERED, SIGNED AND DATE IN KISUMU THIS 4THDAY OF NOVEMBER, 2024. M. S. SHARIFFJUDGE