[2021] KEHC 7904 (KLR)
The court found that the applicants had already benefited from a resentencing exercise which reduced their sentence from death to 20 years imprisonment. The court held that the applicants could not seek a further reduction of sentence on the same grounds, as the resentencing was already lenient and less severe than...
Source-derived case information.
- Citation
- [2021] KEHC 7904 (KLR)
- Parties
- Applicant: Paul Omondi Odipo; Applicant: David Omondi Achayo; Applicant: Charles Oduor Akinyi Ogaja; Applicant: Joseph Onyango Were Oduma; Applicant: Hesbon Otieno Okoth; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E059 of 2021
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Review of Sentence
- Outcome
- application dismissed
- Judges
- RE Aburili
- Legal Topics
- Resentencing, Sentence Review, Murder Conviction, Constitutional Rights in Sentencing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Omondi Odipo
Applicant
David Omondi Achayo
Applicant
Charles Oduor Akinyi Ogaja
Applicant
Joseph Onyango Were Oduma
Applicant
Hesbon Otieno Okoth
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Review of Sentence
Legal Issues
- 1 Whether the applicants are entitled to a further reduction of their sentence under Article 50(2)(p) of the Constitution after resentencing.
- 2 Whether the High Court at Siaya has jurisdiction to review a sentence imposed by the High Court at Kisumu.
Ratio Decidendi
The court found that the applicants had already benefited from a resentencing exercise which reduced their sentence from death to 20 years imprisonment. The court held that the applicants could not seek a further reduction of sentence on the same grounds, as the resentencing was already lenient and less severe than the original sentence. The court also noted that the applicants had bypassed the proper forum by approaching the Siaya High Court instead of the Kisumu High Court, amounting to forum shopping and abuse of court process. Consequently, the application was found to be without merit and was dismissed in its entirety.
Court Disposition
application dismissed
Orders
- The application is dismissed in its entirety.
- The ruling to be typed and sent to the Deputy Registrar Kisumu High Court for placement in Murder Cr. 12/2006 and Constitutional Criminal Petition No. 47/2019 (resentencing).
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT SIAYA
MISC. CRIMINAL APPLICATION NO. E059 OF 2021
CORAM: R.E. ABURILI, J
PAUL OMONDI ODIPO......................................................................1ST APPLICANT
DAVID OMONDI ACHAYO...............................................................2ND APPLICANT
CHARLES ODUOR AKINYI OGAJA...............................................3RD APPLICANT
JOSEPH ONYANGO WERE ODUMA...............................................4TH APPLICANT
HESBON OTIENO OKOTH................................................................5TH APPLICANT
VERSUS
REPUBLIC.................................................................................................RESPONDENT
(Being an Application originating from Kisumu High Court Cr. 12/2006 AND vide Resentencing Petition No. 47/2019 at Kisumu)
RULING
1. The 5 Applicants/convicts filed the Notice of Motion on 25/3/2021 seeking that this court considers and gives them the least severe sentence as stipulated in Article 50(2)(p) of the Constitution by reviewing the 20 years imprisonment which was reimposed on them after an appeal, to commence in 2006 the date of arrest.
2. I note that the applicants were sentenced to death for Murder vide Kisumu HC Cr. 12/2006 and vide a resentencing Petition No. 47/2019 at Kisumu High Court, they were resentenced to serve 20 years imprisonment. The convicts having benefited from the least severe sentence of death to only 20 years imprisonment, and as the latter sentence was not the original sentence, I find no merit in this application.
3. In addition they had the opportunity to seek for the least severe sentence during resentencing. The resentence imposed was too lenient and less severe. They cannot bite the cherry twice. Furthermore, they have bypassed Kisumu High Court to this court which is mischievous and a forum shopping exercise.
4. I decline to grant the orders sought and dismiss the application in its entirety and direct that this ruling be typed and send to the Deputy Registrar Kisumu High Court to be placed in Murder Cr. 12/2006 and Constitutional Criminal Petition No. 47/2019(resentencing) to avoid abuse of court process.
5. The application is dismissed.
6. File closed.
7. Orders accordingly.
Dated, signed and delivered at Siaya, this 1st Day of April 2021
R.E. ABURILI
JUDGE