[2023] KEHC 24644 (KLR)
The High Court lacks jurisdiction to entertain the application for re-sentencing because the Supreme Court's directions in Muruatetu restrict such jurisdiction to murder cases only. Additionally, since the applicant's conviction and sentence were already affirmed by the High Court on appeal, the court is functus...
Source-derived case information.
- Citation
- [2023] KEHC 24644 (KLR)
- Parties
- Applicant: Ngongo Nyongesa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E096 of 2021
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Re Sentencing
- Outcome
- application dismissed
- Judges
- PJO Otieno
- Legal Topics
- Re Sentencing Jurisdiction, Functus Officio, Pre Conviction Custody, Mandatory Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ngongo Nyongesa
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Re Sentencing
Legal Issues
- 1 Whether the High Court has jurisdiction to re-sentence the applicant after the sentence was affirmed on appeal.
- 2 Whether the Supreme Court decision in Muruatetu applies to offences other than murder for purposes of re-sentencing.
- 3 Whether the period served in custody prior to conviction should be reckoned in the applicant's sentence.
Ratio Decidendi
The High Court lacks jurisdiction to entertain the application for re-sentencing because the Supreme Court's directions in Muruatetu restrict such jurisdiction to murder cases only. Additionally, since the applicant's conviction and sentence were already affirmed by the High Court on appeal, the court is functus officio and cannot revisit the sentence. The claim regarding the period served in custody prior to conviction was also dismissed, as the applicant had been released on bond pending trial, and thus no unaccounted pre-conviction custody period existed. Consequently, the application for re-sentencing fails on all grounds.
Court Disposition
application dismissed
Orders
- The application for re-sentencing is dismissed.
- Let the court file be closed.
Full Case Text
Judgment text and source record
23 paragraphs
Nyongesa v Republic (Miscellaneous Criminal Application E096 of 2021) [2023] KEHC 24644 (KLR) (27 October 2023) (Ruling)
Neutral citation: [2023] KEHC 24644 (KLR)
Republic of Kenya
In the High Court at Kakamega
Miscellaneous Criminal Application E096 of 2021
PJO Otieno, J
October 27, 2023
Between
Ngongo Nyongesa
Applicant
and
Republic
Respondent
Ruling
1. By a Notice of Motion filed in court on the December 9, 2021, the applicant seeks from court an order that the court re-considers the sentence of twenty (20) years imposed by the trial court and affirmed by the High Court on appeal. His grounds for seeking re-sentence is that he should be considered a first offender, he has a family who entirely depend on him; that he is sickly; that he has been in custody since 2011 and the period served in custody before conviction and sentence was not reckoned with.
2. The prosecution opposes the request on the two points; that there is no jurisdiction in the court pursuant to the directions of the Supreme Court in Muruatetu & another v Republic; Katiba Institute & 4 others (Amicus Curiae) (Petition 15 & 16 of 2015) [2021] KESC 31 (KLR) (6 July 2021) (Directions) and secondly, that the sentence having been confirmed by the High Court in Kakamega HCCR. Appeal No. 19 of 2015 the court has become functus officio.
3. The law settled by the Supreme Court in Muruatetu Case(supra) deserve no reiteration. It is settled that only murder convicts are expected to seek re-sentencing and not all offences attracting mandatory sentences.
4. Secondly, there was filed before this court an appeal as aforesaid which appeal was determined on the merits by a Judgment dated December 3, 2018. In that Judgment, the court concluded:-“The appeal before me is not merited. I shall accordingly disallow the same. I hereby dismiss the same and uphold the conviction of the appellant by the trial Court in Butali SRMCC No. 40 of 2021 and confirm the sentence of twenty (20) years imprisonment.”
5. It is the finding by this court that it lacks jurisdiction to entertain the application and that on account of the Judgment on appeal by the same court it has become functus officio in matters sentence.
6. There is however the claim of the period served in custody not having been addressed by the initial sentence.
7. The court concurs that the trial court did not reckon with the pre-conviction passed and the matter was indeed not canvassed before the appellate court. However, the records at trial show that the Accused was granted bond and was actually released pending trial. That ground equally fails.
8. In totality the application fails and is dismissed. Let the court file be closed.
DATED, SIGNED AND DELIVERED AT KAKAMEGA THIS 27TH DAY OF OCTOBER 2023. PATRICK J. O. OTIENOJUDGEIn the presence of:-Applicant in personMs. Chala for the RespondentCourt Assistant: Polycap