[2023] KEHC 3667 (KLR)
The High Court lacks jurisdiction to revise or review a sentence where an appeal on the same matter has already been heard and dismissed by a court of equal jurisdiction. Furthermore, the Supreme Court's decision in Muruatetu, which declared the mandatory death sentence for murder unconstitutional, is expressly...
Source-derived case information.
- Citation
- [2023] KEHC 3667 (KLR)
- Parties
- Appellant: Oprodi Peter Omukanga; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition 7 of 2019
- Procedural Posture
- Criminal Petition / Judgment
- Outcome
- petition dismissed
- Judges
- REA Ougo
- Legal Topics
- Robbery With Violence, Sentencing Review, Jurisdiction of High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Oprodi Peter Omukanga
Appellant
Republic
Respondent
Procedural Posture
Criminal Petition / Judgment
Legal Issues
- 1 Whether the High Court has jurisdiction to revise the sentence after an appeal has been dismissed by a court of equal jurisdiction.
- 2 Whether the Supreme Court decision in Muruatetu applies to mandatory sentences for robbery with violence.
Ratio Decidendi
The High Court lacks jurisdiction to revise or review a sentence where an appeal on the same matter has already been heard and dismissed by a court of equal jurisdiction. Furthermore, the Supreme Court's decision in Muruatetu, which declared the mandatory death sentence for murder unconstitutional, is expressly limited to murder cases and does not apply to other offences such as robbery with violence. Therefore, the petitioner's reliance on Muruatetu to seek a review of his sentence for robbery with violence is misplaced and without merit. The petition is accordingly dismissed for want of jurisdiction and lack of legal basis.
Court Disposition
petition dismissed
Orders
- The petition is dismissed for lack of jurisdiction and merit.
Full Case Text
Judgment text and source record
18 paragraphs
Omukanga v Republic (Criminal Petition 7 of 2019) [2023] KEHC 3667 (KLR) (3 April 2023) (Judgment)
Neutral citation: [2023] KEHC 3667 (KLR)
Republic of Kenya
In the High Court at Bungoma
Criminal Petition 7 of 2019
REA Ougo, J
April 3, 2023
Between
Oprodi Peter Omukanga
Petitioner
and
Republic
Respondent
Judgment
1. Oprodi Peter Omukanga , the Petitioner, has filed a petition and seeks the following orders; that the court grants orders for revision of sentence in respect in respect of Robbery with Violence contrary to section 296 (2) of the Penal Code in CRC No. 27 of 2011 at CM’s Court Bungoma. That whilst effecting the said order the court should consider the period spent in custody from the time of his arrest.
2. The petitioner admits that his appeal before the High court was heard and was dismissed. The Respondent has opposed the Petition on ground that this court lacks the jurisdiction to hear the petition as the petitioner’s appeal was heard and dismissed by a court of equal jurisdiction. The petition relies in the Supreme Court Ruling, though not mentioned in his petition, I believe he is referring to the case of Francis Muruatetu.
3. I agree with the Respondent that this court lacks the jurisdiction to grant the orders being sought as a court of similar jurisdiction heard the petitioner’s appeal and dismissed it. The directions given on 6th July 2021 by the Supreme Court in the case ofFrancis Karioko Muruatetu & Another vs Republic [2017] eKLR was that the said decisional law is not an authority to declare all mandatory or minimum sentences unconstitutional. Its application was limited to murder cases falling within its scope. Therefore, the petitioner’s being a case of robbery with violence, the request by the petitioner for review of sentence on the basis of Muruatetu case is without merit . His petition therefore fails and is dismissed.
DATED, SIGNED AND DELIVERED AT BUNGOMA VIA MICROSOFT TEAMS THIS 3RD APRIL 2023. R.E.OUGOJUDGEIn the presence of;Petitioner in personMr. Ayekha For the State/RespondentOkwaro C/A