[2021] KEHC 7074 (KLR)
The High Court lacks jurisdiction to entertain a resentencing application when the applicant has a pending appeal before the Court of Appeal. Resentencing under the Muruatetu decision is only available to convicts who have exhausted all avenues of appeal or where the conviction is no longer being challenged. Since...
Source-derived case information.
- Citation
- [2021] KEHC 7074 (KLR)
- Parties
- Applicant: Reuben Mulongo Nyongesa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Petition 61 of 2018
- Procedural Posture
- Criminal Resentencing Application / Ruling on Application for Resentencing Pending Appeal
- Outcome
- application dismissed
- Judges
- LK Kimaru
- Legal Topics
- Murder Conviction, Resentencing, Mandatory Death Sentence, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Reuben Mulongo Nyongesa
Applicant
Republic
Respondent
Procedural Posture
Criminal Resentencing Application / Ruling on Application for Resentencing Pending Appeal
Legal Issues
- 1 Whether the High Court has jurisdiction to entertain a resentencing application when an appeal is pending before the Court of Appeal.
- 2 Whether the applicant is entitled to resentencing under the Francis Karioko Muruatetu decision while still challenging his conviction.
Ratio Decidendi
The High Court lacks jurisdiction to entertain a resentencing application when the applicant has a pending appeal before the Court of Appeal. Resentencing under the Muruatetu decision is only available to convicts who have exhausted all avenues of appeal or where the conviction is no longer being challenged. Since the applicant still has an active appeal and does not admit to the offence, he cannot seek mitigation or resentencing at this stage. The application is therefore premature and must be dismissed for want of jurisdiction.
Court Disposition
application dismissed
Orders
- The application for resentencing is dismissed.
- The court lacks jurisdiction to entertain the application while an appeal is pending before the Court of Appeal.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KITALE
PETITION NO. 61 OF 2018
(From original conviction and sentence in Criminal Case No. 62 of 2011 Kitale High Court)
REUBEN MULONGO NYONGESA........APPLICANT
VERSUS
REPUBLIC.............................................RESPONDENT
RULING
The Applicant Reuben Mulongo Nyongesa, was convicted of the charge of Murder contrary to Section 203 as read with Section 204of thePenal Code. The court found as a fact that the Applicant had on the night of 5th December, 2011 at Mbai Farm, Kiminini Village in Trans Nzoia County killed Peter Kiprotich with malice aforethought. From the evidence adduced, it was apparent that the motive the crime was robbery. Some of the items robbed from the deceased’s house were found in the Applicant’s possession. The Applicant was sentenced to death. The sentence was however commuted to life imprisonment by presidential exercise of the Power of Mercy.
The Applicant has applied to this court for resentencing pursuant to the Supreme Court’s decision of Francis Karioko Muruatetu & Another Vs Republic [2017] eKLRwhich outlawed mandatory death sentences. The Supreme Court held that the mandatory death sentences deprived the convict an opportunity to mitigate the sentence. It further deprived the sentencing court discretion to mete out appropriate sentences in the circumstances of each case.
During the hearing of the application, the Applicant conceded that he has a pending Appeal before the Court of Appeal. The Appeal is yet to be heard and determined. Mr Omooria for the Prosecution urged the court to disallow the application since the Applicant had not exhausted his appeals.
This court agrees that when an Applicant has a pending appeal, he cannot apply to this court to be resentenced. The reason for this is straightforward; Resentencing is available those convicts who no longer challenge their conviction or where the final court has found as a fact that the Applicant committed the offence. In the present application, the Applicant still does not admit that he committed the offence. He cannot therefore mitigate on a conviction that he is challenging. The decision in Francis Karioko Muruatetu(Supra) is clear; An opportunity is given to those convicts who have exhausted their appeals and therefore the only avenue available to them is through an application for resentencing where they will be given an opportunity to mitigate their sentence.
That being the case here, the Application herein was prematurely brought to this court. This court lacks jurisdiction to entertain the same when there is a pending Appeal before the Court of Appeal. The application is therefore dismissed.
DATED AT KITALE THIS 10TH DAY OF MAY 2021
L. KIMARU
JUDGE