[2022] KEHC 16987 (KLR)
The High Court lacks jurisdiction to entertain an application for resentencing where the applicant has exhausted all appellate remedies, including an unsuccessful appeal to the Court of Appeal. The doctrine of functus officio precludes the court from revisiting the sentence. Furthermore, the Supreme Court's...
Source-derived case information.
- Citation
- [2022] KEHC 16987 (KLR)
- Parties
- Applicant: Paul Ndegwa Wangari; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Naivasha
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 27 of 2020
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Resentencing After Exhaustion of Appeals
- Outcome
- application dismissed
- Judges
- GWN Macharia
- Legal Topics
- Defilement, Sexual Offences Act, Resentencing, Finality of Appeals
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Ndegwa Wangari
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Resentencing After Exhaustion of Appeals
Legal Issues
- 1 Whether the High Court has jurisdiction to resentence an applicant after all appellate avenues have been exhausted.
- 2 Whether the Supreme Court decision in Francis Karioko Muruatetu applies to offences other than murder.
Ratio Decidendi
The High Court lacks jurisdiction to entertain an application for resentencing where the applicant has exhausted all appellate remedies, including an unsuccessful appeal to the Court of Appeal. The doctrine of functus officio precludes the court from revisiting the sentence. Furthermore, the Supreme Court's directions in the Francis Karioko Muruatetu case clarified that its holding on the unconstitutionality of mandatory sentences applies exclusively to murder cases and not to other offences such as defilement. Therefore, the application for resentencing is without merit and must be dismissed.
Court Disposition
application dismissed
Orders
- The application for resentencing is dismissed.
Full Case Text
Judgment text and source record
22 paragraphs
Wangari v Republic (Miscellaneous Criminal Application 27 of 2020) [2022] KEHC 16987 (KLR) (20 December 2022) (Ruling)
Neutral citation: [2022] KEHC 16987 (KLR)
Republic of Kenya
In the High Court at Naivasha
Miscellaneous Criminal Application 27 of 2020
GWN Macharia, J
December 20, 2022
Between
Paul Ndegwa Wangari
Applicant
and
Republic
Respondent
Ruling
RULING ON APPLICATION SEEKING RESENTENCING 1. The Applicant herein moved the court vide a home-made Notice of Motion filed alongside a supporting affidavit on July 8, 2020. He basically prays that he be reheard on sentence; simply stated that, the court should set aside the life imprisonment sentence imposed on him and based on the mitigation he offers and the circumstances of the case, a more lenient sentence be imposed.
2. A brief background to the application is that the Applicant was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act, No 3 of 2006. It was alleged that on the night of May 12, 2012 in Naivasha Municipality within Nakuru County, intentionally and unlawfully did cause his genital organ namely penis to penetrate the genital organ namely vagina of HWN a girl aged 9 years. In the alternative, he was charged with indecent act with a child contrary to Section 11(1) of the Sexual Offences Act, No 3 of 2006 in that he indecently and unlawfully caused his genital organ namely penis to come into contact with the genital organ namely vagina of HWN a girl aged 9 years.
3. After a full trial, the Applicant was found guilty, convicted and sentenced to serve life imprisonment on February 27, 2013. His first appeal to the High Court was dismissed in its entirety vide a judgment delivered by Emukule, J (as he then was) in Nakuru High Court Criminal Appeal No 30 of 2013.
4. During the hearing of the application, the Applicant in his submission made a disclosure that a second appeal to the Court of Appeal too, was dismissed.
5. I pose here and say that this is a matter that has been decided with finality. The Applicant has exhausted all the appellate processes and this court being inferior to the Court of Appeal cannot further adjudicate on it. By virtue of hierarchical jurisdiction, I am functus officio to the matter. Attempting to sit on the matter, even on resentencing would amount to a misconduct as I cannot purport to be a court superior to the Court of Appeal.
6. In any event, as at date, it is settled by the Supreme Court vide directions given in a Ruling in the famous Francis Kariokor Muruatetu Case that the ratio decindedi therein only applies to murder trials.
7. In the premises, the application herein has no merit and the same is dismissed.
DATED AND DELIVERED AT NAIVASHA THIS 20TH DECEMBER, 2022. G W NGENYE-MACHARIAJUDGEIn the presence of:1. Applicant in person.2. Mr Michuki for the Respondent.