[2018] KEHC 3992 (KLR)
The court found that the petitioner had not exhausted his right of appeal, as he had not filed an appeal to the Court of Appeal after his conviction and sentence were affirmed by the High Court. The court held that a petition for resentencing, premised on the Supreme Court's decision in Muruatetu declaring the...
Source-derived case information.
- Citation
- [2018] KEHC 3992 (KLR)
- Parties
- Appellant: Samson Ochieng Ogaja; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition 54 of 2018
- Procedural Posture
- Criminal Petition / Judgment
- Outcome
- petition dismissed as premature
- Judges
- TW Cherere
- Legal Topics
- Resentencing, Mandatory Death Sentence, Right of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samson Ochieng Ogaja
Appellant
Republic
Respondent
Procedural Posture
Criminal Petition / Judgment
Legal Issues
- 1 Whether the petition for resentencing is competent where the petitioner has not exhausted his right of appeal.
- 2 Whether the Supreme Court decision on the unconstitutionality of the mandatory death sentence applies in the present circumstances.
Ratio Decidendi
The court found that the petitioner had not exhausted his right of appeal, as he had not filed an appeal to the Court of Appeal after his conviction and sentence were affirmed by the High Court. The court held that a petition for resentencing, premised on the Supreme Court's decision in Muruatetu declaring the mandatory death sentence unconstitutional, is premature where the appellate process has not been completed. The petition was therefore disallowed on the ground of prematurity.
Court Disposition
petition dismissed as premature
Orders
- The petition for resentencing is disallowed.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISUMU
CRIMINAL PETITION NO.54 OF 2018
(CORAM: T.W.CHERERE J.)
BETWEEN
SAMSON OCHIENG OGAJA........................PETITIONER
AND
REPUBLIC.....................................................RESPONDENT
JUDGMENT
1. The matter before the court is a petition for resentencing necessitated by the Supreme Court decision inFrancis Karioko Muruateru & Another v Republic SCK Pet. No. 15 OF 2015 [2017] eKLR declaring the mandatory death sentence unconstitutional.
2. The petition was filed without any supporting documents. In my effort to get the appeal files, I established from the High Court Registry that the petitioner filed HCCRA NO. 345 OF 2001 which was heard and dismissed. I also established from and Court of Appeal Registry that the petitioner subsequently filed CA CRIMINAL APPEAL 67 OF 2007 but it could not be heard because HCCRA NO. 345 OF 2001 file could not be traced. Consequently, the High Court in its duty to ensure that the petitioner’s appeal is heard opened another appeal file Samson Ochieng Ogeja & another v Republic High Court Criminal Appeal 47 of 2017 [2017] eKLR. The appeal was heard and dismissed on 27th November, 2017 thus affirming the death sentence.
3. The petitioner has not filed an appeal to the Court of Appeal. Having not exhausted his right of appeal, I find that this petition for resentencing is premature and it is disallowed.
DATED AND SIGNED AT KISUMU THIS27thDAY OFSeptember, 2018
T. W. CHERERE
JUDGE
In the presence of-
Court Assistant - Felix
Appellant - Present in person
For the State - Mr. Barasa