[2023] KEHC 18433 (KLR)
The High Court held that it had already determined the applicant's re-sentencing application and dismissed it, finding that the Muruatetu case did not apply to sentences of life imprisonment for defilement. The court further held that, having delivered its ruling, it was functus officio and lacked jurisdiction to...
Source-derived case information.
- Citation
- [2023] KEHC 18433 (KLR)
- Parties
- Applicant: Kennedy Ngetich alias Benard Tiondo Kiprono; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E100 of 2021
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application to Set Aside Previous Order and Restore Re Sentencing Application
- Outcome
- application dismissed
- Judges
- HK Chemitei
- Legal Topics
- Defilement Offence, Life Imprisonment Sentencing, Resentencing Applications, Functus Officio, Appellate Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kennedy Ngetich alias Benard Tiondo Kiprono
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application to Set Aside Previous Order and Restore Re Sentencing Application
Legal Issues
- 1 Whether the High Court can set aside its previous order dismissing a re-sentencing application after the applicant's conviction and sentence were confirmed on appeal.
- 2 Whether the Muruatetu decision applies to life imprisonment sentences for defilement.
- 3 Whether the High Court is functus officio after delivering a ruling on re-sentencing.
Ratio Decidendi
The High Court held that it had already determined the applicant's re-sentencing application and dismissed it, finding that the Muruatetu case did not apply to sentences of life imprisonment for defilement. The court further held that, having delivered its ruling, it was functus officio and lacked jurisdiction to set aside its previous order or restore the dismissed application. The only recourse available to the applicant was to pursue his pending appeal before the Court of Appeal. Accordingly, the application to set aside the previous order and restore the re-sentencing application was dismissed.
Court Disposition
application dismissed
Orders
- The application to set aside the previous order and restore the re-sentencing application is dismissed.
Full Case Text
Judgment text and source record
20 paragraphs
Ngetich v Republic (Miscellaneous Criminal Application E100 of 2021) [2023] KEHC 18433 (KLR) (14 June 2023) (Ruling)
Neutral citation: [2023] KEHC 18433 (KLR)
Republic of Kenya
In the High Court at Nakuru
Miscellaneous Criminal Application E100 of 2021
HK Chemitei, J
June 14, 2023
Between
Kennedy Ngetich alias Benard Tiondo Kiprono
Applicant
and
Republic
Respondent
Ruling
1. The applicant was convicted and subsequently sentenced to life imprisonment for the offence of defilement by the Children Court in Nakuru. Being aggrieved by the said decision, the applicant appealed to the High Court which confirmed the conviction and the sentence. Thereafter, the applicant filed an appeal to the Court of Appeal and the matter is still pending before the said court.
2. The applicant herein approached this court for re-sentencing vide his application dated August 7, 2020 and this court dismissed the same vide its ruling delivered on February 21, 2022. The applicant has now approach this court with an application seeking to have this court to set aside the orders it issued in the said ruling and restore the applicant’s application dated May 24, 2021 seeking re-sentencing.
3. This court takes note that it addressed an application for re-sentencing by the applicant where he relied on the Muruatetu case in it earlier ruling date February 21, 2022. In the said ruling, this court opined that the Muruatetu case was with respect to the death penalty and it only permitted re-sentencing for individuals who had been sentenced to mandatory death sentence without the benefit of mitigation. This court noted that the said case could not apply to the applicant who was sentenced to life imprisonment and his sentence confirmed on appeal in the High court. This court further opined that it had no power to revise the decision of a concurrent High Court Judge or the Court of Appeal. Additionally, this court opined that the only recourse for the applicant was to appeal to the Court of Appeal.
4. In view of the foregoing, this Court having delivered its ruling for re-sentencing vide its ruling of February 21, 2022 became functus officio and the applicant should wait the outcome of his case pending before the Court of Appeal.
5. In the premises, the application herein is dismissed.
DATED SIGNED AND DELIVERED AT NAKURU VIA VIDEO LINK THIS 14TH DAY OF JUNE 2023. H K CHEMITEIJUDGE