[2022] KEHC 14161 (KLR)
The High Court held that it lacks jurisdiction to entertain a resentencing petition where the petitioner has an active, unwithdrawn appeal before the Court of Appeal. Entertaining the petition would risk conflicting decisions between the High Court and the appellate court. The petitioner was previously advised to...
Source-derived case information.
- Citation
- [2022] KEHC 14161 (KLR)
- Parties
- Applicant: Henry Obisa Ouko; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition E029 of 2021
- Procedural Posture
- Criminal Petition / Judgment
- Outcome
- petition dismissed
- Judges
- RE Aburili
- Legal Topics
- Resentencing, Mandatory Death Sentence, Constitutionality of Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Henry Obisa Ouko
Applicant
Republic
Respondent
Procedural Posture
Criminal Petition / Judgment
Legal Issues
- 1 Whether the High Court can entertain a resentencing petition when an appeal is pending before the Court of Appeal.
- 2 Whether the mandatory death sentence imposed on the petitioner is unconstitutional and violates his rights under Article 27(1)(2) of the Constitution.
Ratio Decidendi
The High Court held that it lacks jurisdiction to entertain a resentencing petition where the petitioner has an active, unwithdrawn appeal before the Court of Appeal. Entertaining the petition would risk conflicting decisions between the High Court and the appellate court. The petitioner was previously advised to withdraw his appeal if he wished to pursue resentencing, but failed to do so. As a result, the petition for resentencing was found to be premature and devoid of merit, and was accordingly dismissed.
Court Disposition
petition dismissed
Orders
- The petition for resentencing is dismissed.
- The file is closed.
Full Case Text
Judgment text and source record
25 paragraphs
Ouko v Republic (Criminal Petition E029 of 2021) [2022] KEHC 14161 (KLR) (21 October 2022) (Judgment)
Neutral citation: [2022] KEHC 14161 (KLR)
Republic of Kenya
In the High Court at Kisumu
Criminal Petition E029 of 2021
RE Aburili, J
October 21, 2022
Between
Henry Obisa Ouko
Petitioner
and
Republic
Respondent
(Being a Petition for resentencing in Kisumu HCCR Case No. 18 of 2017 by Hon. T.W. Cherere J on 26/7/2018)
Judgment
1. This petition is for resentencing. The petitioner is Henry Obisa Aoko. He was convicted of the offence of murder contrary to section 203 as read with section 204 of the Penal Code by Hon TW Cherere J vide her judgement delivered on July 26, 2018 in Kisumu HCCR Case No 18 of 2017.
2. From the judgment which he has annexed to the petition, he claims that he was sentenced to death and wishes this court to review the mandatory death sentence imposed on him because it is unconstitutional and violated his rights under article 27(1) (2) of the Constitution and is degrading.
3. The petition was filed on April 26, 2021 upon which the court requested for information from the Court of Appeal if his appeal was still pending.
4. From the letter dated March 16, 2022, the petitioner has a pending appeal before the Court of Appeal vide CRA 134/2019.
5. That being the case, as the petitioner has not prosecuted his appeal, this court cannot review sentence imposed on him which resentence might conflict with the decision of the Court of Appeal.
6. On June 21, 2022 the petitioner was advised by the then presiding judge Hon FA Ochieng J (as he then was) to withdraw his appeal if he wanted this court to consider resentencing him but to date, no such order of withdrawal of the appeal has been filed.
7. For the above reasons, I find this petition to be devoid of merit and it is premature since the petitioner elected to exhaust the avenues of appeal where the Court of Appeal has jurisdiction to determine whether the death sentence imposed on him is lawful or is unconstitutional.
8. Accordingly, the petition herein is hereby dismissed.
9. This file is closed.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 21STDAY OF OCTOBER, 2022R.E. ABURILIJUDGE