[2022] KEHC 13166 (KLR)
The High Court held that it lacks jurisdiction to resentence the applicant because his appeal is still pending before the Court of Appeal. The applicant has the opportunity to articulate his case, including issues of conviction and sentence, before the appellate court. Entertaining the application for resentencing...
Source-derived case information.
- Citation
- [2022] KEHC 13166 (KLR)
- Parties
- Applicant: Kennedy Oduor Ochieng; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E009 of 2022
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Resentencing
- Outcome
- application dismissed
- Judges
- RE Aburili
- Legal Topics
- Defilement Offence, Resentencing Application, Sexual Offences Act, Pending Appeal, Jurisdiction of High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kennedy Oduor Ochieng
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Resentencing
Legal Issues
- 1 Whether the High Court has jurisdiction to resentence an applicant whose appeal is pending before the Court of Appeal.
- 2 Whether the application for resentencing is merited in light of the pending appeal.
Ratio Decidendi
The High Court held that it lacks jurisdiction to resentence the applicant because his appeal is still pending before the Court of Appeal. The applicant has the opportunity to articulate his case, including issues of conviction and sentence, before the appellate court. Entertaining the application for resentencing at this stage would be improper and contrary to the established appellate process. Accordingly, the application for resentencing was found to be without merit and was dismissed.
Court Disposition
application dismissed
Orders
- The application for resentencing is dismissed.
- File closed.
Full Case Text
Judgment text and source record
20 paragraphs
Ochieng v Republic (Miscellaneous Criminal Application E009 of 2022) [2022] KEHC 13166 (KLR) (23 September 2022) (Ruling)
Neutral citation: [2022] KEHC 13166 (KLR)
Republic of Kenya
In the High Court at Siaya
Miscellaneous Criminal Application E009 of 2022
RE Aburili, J
September 23, 2022
Between
Kennedy Oduor Ochieng
Applicant
and
Republic
Respondent
(Being an Application arising from Judgment, conviction and sentence in Siaya PM’s court Sexual Offence Case No. 627 of 2016 delivered on 27/4/20178 by Hon. C.A. Okore, Senior Resident Magistrate AND Siaya High Court Criminal Appeal No. 45/2017)
Ruling
1. The applicant Kennedy Oduor Ochieng was convicted for the offence of defilement contrary to Section 8(1) and as read with Section 8(3) of the Sexual Offences Act by the trial court in Siaya Sexual Offence No. 627/2016.
2. He appealed to this court vide HCRA No. 45/2017. That appealed was dismissed on 28/1/2019. He appealed to the Court of Appeal and this court’s original file was forwarded to the Court of Appeal. He is now back seeking for resentencing. This cannot resentence the appellant whose appeal is still pending before the Court of Appeal as he can articulate his case better before the Court of Appeal, both on conviction and sentence.
3. I find this application for resentencing devoid of any merit. It is hereby dismissed.
4. File closed.
DATED, SIGNED AND DELIVERED AT SIAYA THIS 23RD DAY OF SEPTEMBER, 2022R.E. ABURILIJUDGE