[2023] KEHC 26111 (KLR)
The court held that it lacks jurisdiction to entertain an application for resentencing while an appeal is pending before the Court of Appeal. Entertaining such an application would be premature and improper, as the appellate process must be exhausted or withdrawn before any resentencing can be considered. The...
Source-derived case information.
- Citation
- [2023] KEHC 26111 (KLR)
- Parties
- Applicant: Charles Owino Otieno; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E134 of 2023
- Procedural Posture
- Criminal Revision / Ruling on Application for Resentencing
- Outcome
- application struck out as premature
- Judges
- RE Aburili
- Legal Topics
- Resentencing Application, Pending Appeal, Prematurity of Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Owino Otieno
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Resentencing
Legal Issues
- 1 Whether the application for resentencing is competent while an appeal is pending before the Court of Appeal.
- 2 Whether the application should be certified as urgent.
Ratio Decidendi
The court held that it lacks jurisdiction to entertain an application for resentencing while an appeal is pending before the Court of Appeal. Entertaining such an application would be premature and improper, as the appellate process must be exhausted or withdrawn before any resentencing can be considered. The application was therefore struck out as premature, with liberty to file a fresh petition after the appeal is concluded or withdrawn.
Court Disposition
application struck out as premature
Orders
- The application for resentencing is struck out as premature.
- The applicant may file a fresh petition after the appeal is concluded or withdrawn.
Full Case Text
Judgment text and source record
22 paragraphs
Otieno v Republic (Criminal Revision E134 of 2023) [2023] KEHC 26111 (KLR) (23 November 2023) (Ruling)
Neutral citation: [2023] KEHC 26111 (KLR)
Republic of Kenya
In the High Court at Kisumu
Criminal Revision E134 of 2023
RE Aburili, J
November 23, 2023
Between
Charles Owino Otieno
Applicant
and
Republic
Respondent
(From the original conviction and sentence in High Court Criminal Case No. 37 of 2010 at Kisumu)
Ruling
1. I have considered the application dated October 31, 2023 under certificate of urgency, seeking for resentencing. I find no urgency involved. I decline to certify the application as urgent.
2. On the prayers sought, I observe that the applicant filed an appeal from the Judgment of this court to the Court of Appeal and until that appeal is fully determined or is wholly withdrawn, an application for resentencing is premature.
3. Accordingly, this application is found to be premature and is hereby struck out. The applicant can however file a fresh petition not revision application, upon the Court of Appeal case being concluded whether through a hearing or withdrawal.
4. The applicant/petitioner will have to place before this court proceedings and judgment in Kisumu HCCR No. 37 of 2010 for perusal and consideration.
5. File closed.
6. I so order.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 23RD DAY OF NOVEMBER, 2023R. E. ABURILIJUDGE