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High CourtDismissed
Re-sentencing Application by a Convict (Robbery with Violence)
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·~2 min to read original · ~4 min briefThe bottom line
#The High Court cannot change a sentence set by the Court of Appeal; the Supreme Court is the only legal avenue for review.
What this practically means
#Executive summary
#The applicant was convicted of robbery with violence contrary to Section 296(2) of the Penal Code and sentenced to death. His High Court appeal failed, but the Court of Appeal, in a judgment delivered on 31 July 2019, upheld the conviction and set aside the death sentence, substituting 25 years imprisonment, expressly relying on the Supreme Court's decision in Francis Karioko Muruatetu & Another v Republic (2017) eKLR, which declared the mandatory death sentence unconstitutional. The applicant then returned to the High Court seeking re-sentencing, arguing he had been in prison for 14 years and was reformed. Justice J. Nyaga Njagi held that the application was, in substance, a disguised attempt to have the High Court review the sentence imposed by the Court of Appeal, a court superior to the High Court. The court found this to be an abuse of process and legally untenable, since the High Court has no power to review a Court of Appeal sentence; the proper avenue for an aggrieved applicant was the Supreme Court. Noting that the Court of Appeal had already considered all circumstances of the case, including Muruatetu, before imposing the 25-year term, the court dismissed the application in its entirety. Judgment was delivered, dated and signed at Kakamega on 14 October 2020, with the applicant appearing via video link from G.K. Prison, Kakamega, and Mr. Mutua appearing for the respondent.
Key legal issues
#01
Whether the High Court can conduct re-sentencing after the Court of Appeal has already substituted the death sentence using Muruatetu
Holding
The application is legally untenable and an abuse of process; the High Court cannot review the Court of Appeal's sentence
Reasoning
The Court of Appeal had already considered the unconstitutionality of the mandatory death sentence per Muruatetu and, weighing all circumstances, substituted 25 years imprisonment. A subordinate court cannot revisit that sentence; the remedy lay in the Supreme Court.
p. 2
Legal principles established
#- A court subordinate to the Court of Appeal has no power to review a sentence imposed by the Court of Appeal; an aggrieved party must move to the Supreme Court
Court orders
#- 1.The application is dismissed in its entirety
- On appeal from
- Court of Appeal
- Not stated in judgment
- Jurisdiction invoked
- Not expressly stated; the court held it lacked power to review a Court of Appeal sentence
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Re-sentencing Application by a Convict (Robbery with Violence)", Case Analysis (2020). . Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.