[2023] KEHC 2884 (KLR)
The High Court held that it lacks jurisdiction to entertain a petition for resentencing while an appeal against the conviction and sentence is pending. Entertaining such a petition would be premature and contrary to established legal principles, as the appellate court is seized of the matter and may alter or uphold...
Source-derived case information.
- Citation
- [2023] KEHC 2884 (KLR)
- Parties
- Applicant: Duncan Odongo Owino; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Petition E038 of 2022
- Procedural Posture
- Constitutional Petition / Ruling on Petition for Resentencing
- Outcome
- petition dismissed as premature
- Judges
- RE Aburili
- Legal Topics
- Defilement Offence, Sentencing Review, Sexual Offences Act, Appeal Pending
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Duncan Odongo Owino
Applicant
Republic
Respondent
Procedural Posture
Constitutional Petition / Ruling on Petition for Resentencing
Legal Issues
- 1 Whether the High Court can entertain a petition for resentencing where an appeal against conviction and sentence is pending.
- 2 Whether the petition for resentencing is premature in light of the pending appeal.
Ratio Decidendi
The High Court held that it lacks jurisdiction to entertain a petition for resentencing while an appeal against the conviction and sentence is pending. Entertaining such a petition would be premature and contrary to established legal principles, as the appellate court is seized of the matter and may alter or uphold the conviction and sentence. The petition for resentencing was therefore dismissed as premature.
Court Disposition
petition dismissed as premature
Orders
- The petition for resentencing is dismissed as premature.
- The file is closed.
Full Case Text
Judgment text and source record
23 paragraphs
Owino v Republic (Petition E038 of 2022) [2023] KEHC 2884 (KLR) (24 March 2023) (Ruling)
Neutral citation: [2023] KEHC 2884 (KLR)
Republic of Kenya
In the High Court at Kisumu
Petition E038 of 2022
RE Aburili, J
March 24, 2023
Between
Duncan Odongo Owino
Applicant
and
Republic
Respondent
(From original conviction and sentence in Sexual Offences No 3 of 2018 in the Resident Magistrate’s Court at Winam)
Ruling
1. The petitioner herein Duncan Odongo Owino was convicted and sentenced to serve twenty (20) years imprisonment for the offence of defilement contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act.
2. From the annexed extract from prisoner’s record sheet at Kisumu Maximum Prison, the convict has been in prison for three (3) years and that he has appealed against the judgement, conviction and sentence passed in Winam Resident Magistrate’s Court Sexual Offences case No 3 of 2018. He was convicted on May 8, 2019.
3. As the petitioner has a pending appeal for consideration, this court cannot revise his sentence. I find this petition for resentencing premature. It is hereby dismissed.
4. This file is closed.
5. The petitioner/convict to be notified via signal to prison.
6. Ruling and signal to be typed forthwith.
7. I so order.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 24TH DAY OF MARCH, 2023R. E. ABURILIJUDGE