[2019] KEHC 7768 (KLR)
The High Court lacks jurisdiction to review or vary its own sentence after resentencing has been concluded, except as provided by law. If the petitioner believes that the resentencing court failed to consider the period spent in custody, his remedy lies with the Court of Appeal and not by way of a fresh petition...
Source-derived case information.
- Citation
- [2019] KEHC 7768 (KLR)
- Parties
- Petitioner: Richard Oricho Onyango; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Petition 12 of 2019
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- petition dismissed
- Judges
- TW Cherere
- Legal Topics
- Resentencing, Custodial Period Deduction, Jurisdiction of High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Richard Oricho Onyango
Petitioner
Republic
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the High Court has jurisdiction to review a sentence to deduct the pre-conviction custodial period after resentencing.
- 2 Whether the petitioner is entitled to a reduction of sentence by 4 years for time spent in custody before conviction.
Ratio Decidendi
The High Court lacks jurisdiction to review or vary its own sentence after resentencing has been concluded, except as provided by law. If the petitioner believes that the resentencing court failed to consider the period spent in custody, his remedy lies with the Court of Appeal and not by way of a fresh petition before the High Court. The petition is therefore without merit and must be dismissed for want of jurisdiction.
Court Disposition
petition dismissed
Orders
- The petition is dismissed for want of merit.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
(CORAM: CHERERE- J.)
PETITION NO. 12 OF 2019
BETWEEN
RICHARD ORICHO ONYANGO..................PETITIONER
AND
REPUBLIC.....................................................RESPONDENT
JUDGMENT
Introduction
1. RICHARD ORICHO ONYANGO, (hereinafter referred to as the petitioner) was sentenced to death in KISUMU CRIMINAL CASE NO. 163 OF 2000. The conviction and sentence were confirmed in KISUMU CRIMINAL APPEAL NO. 224 OF 2004 and also by the Court of Appeal. Subsequently, the Petitioner applied for resentence in KISUMU CRIMINAL PETITION NO. 24 OF 2018 and was resentenced to 30 years imprisonment.
2. In the current petition filed on 8th February, 2019, the petitioner contends that resentence did not take into account the period of 4 years that he had been in custody before he was convicted and sentenced and prays that the sentence be reduced by 4 years.
3. I have considered the Petition and I find and hold that this court has no jurisdiction to review the sentence as prayed by the Petitioner. If the Petitioner is of the considered opinion that the court that resentenced him overlooked some material factors, his remedy lies with the Court of Appeal.
4. Consequently, the Petition is considered and found to have no merit and it is dismissed.
DATED AND SIGNED IN KISUMU THIS 28THDAY OF MARCH2019
T. W. CHERERE
JUDGE
Read in open court in the presence of-
Court Assistant- Felix
Petitioner- Present in person
For the State- Mr. Muia