James Onzano Opuchi v Republic [2021] KEHC 7070 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KITALE

CRIMINAL PETITION NO. 40 OF 2018

(From original conviction and sentence in Criminal Case No. HCCR 18 of 2003)

JAMES ONZANO OPUCHI.........................................................................APPLICANT

VERSUS

REPUBLIC..................................................................................................RESPONDENT

RULING

The Applicant James Onzano Opuchi, was convicted of Murder contrary to Section 203 as read with Section 204 of the Penal Code.  He was sentenced to death. The sentence of death was later commuted to life imprisonment.  The Applicant was aggrieved by his conviction and sentence.  He filed an appeal in the Court of Appeal. Meanwhile the Applicant has approached this court with an application seeking to be resentenced. There is no evidence placed before the record of this court that the Applicant has withdrawn or abandoned his appeal to the Court of Appeal.

The resentencing option is only available to a convict who has exhausted all the legally available avenues of appeal. A resentencing is not an alternative  to an appeal.  A resentencing is not a short-cut to the appeal process. An Applicant applying  to the court for  resentencing  pursuant to the Supreme Court  decision of Francis  Karioko Muruatetu & Others – vs- Republic [2017] eKLR is assumed  to have either admitted the offence  or that the Appellate process has ender it such that  he can no longer challenge  his conviction.  Where it is established that there is a pending appeal, this court has no jurisdiction to m hear an application for resentencing because to do so, will be usurping the jurisdiction of the Court of Appeal.

In the premises therefore, notwithstanding the Applicant’s mitigation, this court cannot consider the application for resentencing because it lacks jurisdiction.  The Application herein was filed during the pendency of an appeal to  the Court of Appeal. The said lacks merit and is hereby dismissed.

DATED AT KITALE THIS 10TH DAY OF MAY, 2021

L.KIMARU

JUDGE