[2023] KEHC 2885 (KLR)
The High Court lacks jurisdiction to consider a petition for resentencing while an appeal on the same conviction and sentence is pending before the Court of Appeal. The petitioner must first withdraw the pending appeal before the High Court can entertain the resentencing petition. The attempt to withdraw the wrong...
Source-derived case information.
- Citation
- [2023] KEHC 2885 (KLR)
- Parties
- Appellant: Benard Were Okombo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Petition E047 of 2021
- Procedural Posture
- Criminal Appeal / Ruling on Petition for Resentencing
- Outcome
- petition dismissed as prematurely filed
- Judges
- RE Aburili
- Legal Topics
- Resentencing, Mandatory Death Sentence, Right to Mitigate, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benard Were Okombo
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Petition for Resentencing
Legal Issues
- 1 Whether the High Court can entertain a petition for resentencing while an appeal is pending before the Court of Appeal.
- 2 Whether the petition for resentencing was prematurely filed due to the existence of a pending appeal.
Ratio Decidendi
The High Court lacks jurisdiction to consider a petition for resentencing while an appeal on the same conviction and sentence is pending before the Court of Appeal. The petitioner must first withdraw the pending appeal before the High Court can entertain the resentencing petition. The attempt to withdraw the wrong appeal number does not cure the jurisdictional defect. Therefore, the petition for resentencing is prematurely filed and must be dismissed.
Court Disposition
petition dismissed as prematurely filed
Orders
- The petition for resentencing is dismissed as prematurely filed.
- The petitioner may refile the petition after withdrawing the pending appeal.
Full Case Text
Judgment text and source record
22 paragraphs
Okombo v Republic (Petition E047 of 2021) [2023] KEHC 2885 (KLR) (24 March 2023) (Ruling)
Neutral citation: [2023] KEHC 2885 (KLR)
Republic of Kenya
In the High Court at Kisumu
Petition E047 of 2021
RE Aburili, J
March 24, 2023
Between
Benard Were Okombo
Petitioner
and
Republic
Respondent
(From original conviction and sentence in Criminal Case No 36 of 2009 in the High Court at Kisumu delivered on 27th April 2017)
Ruling
1. The Petition herein Benard Were Okombo filed this Petition for resentencing on August 18, 2021. He was convicted and sentenced to suffer death for the offence of murder. He now seeks for resentencing following the Supreme Court pronouncement in Francis Karioko Muruatetu & Another vs Republic (2017) eKLR that the mandatory nature of the death sentence for murder convicts was unconstitutional for depriving a convict the right to mitigate and the trial court discretion in sentencing.
2. The Petitioner also filed his submissions in support of his Petition on August 31, 2022. However, this Petition has not been heard and determined owing to what the court of Appeal confirmed on December 20, 2021 that the Petitioner has a pending appeal No Criminal Appeal No 247 of 2018 in the Court of appeal at Kisumu.
3. Following that, the Petitioner was advised to withdraw his appeal if he was to be allowed to pursue his petition for resentencing. He subsequently wrote a letter to the Court of Appeal on April 7, 2022 seeking to withdraw the said appeal but quoted a wrong Appeal file No 249 of 2018 yet the Court of Appeal Deputy Registrar wrote to this court citing Criminal Appeal 247 of 2018.
4. This court cannot resentence the Petitioner when his appeal at the Court of Appeal is still pending. There is no reason why the Petitioner sought to withdraw a wrong appeal. In my view, the Petitioner wants to have his cake and eat it.
5. I find this petition for resentencing prematurely filed. It is hereby dismissed. The Petitioner can refile his petition afresh after the withdraw of his appeal.
6. This Ruling and signal to be typed and issued forthwith. File closed.
Dated, Signed and Delivered at Kisumu this 24thDay of March, 2023R. E. ABURILIJUDGE