Mwalo v Republic [2024] KEHC 13497 (KLR)

Mwalo v Republic (Miscellaneous Criminal Application E199 of 2024) [2024] KEHC 13497 (KLR) (4 November 2024) (Ruling)

Neutral citation: [2024] KEHC 13497 (KLR)

Republic of Kenya

In the High Court at Kisumu

Miscellaneous Criminal Application E199 of 2024

MS Shariff, J

November 4, 2024

Between

Lucas Ochieng Mwalo

Applicant

and

Republic

Respondent

Ruling

1. The Applicant Lucas Ochieng Mwalo was initially convicted of murder and sentenced to suffer death penalty in Kisumu High Court Criminal Case No. 61 of 2011.

2. In the year 2019 the Applicant petitioned the High Court in Kisumu Petition No. 62 of 2019 for resentencing on grounds that his death sentence was unconstitutional. Justice T. W. Cherere then duly considered his petition and expressly took into account inter alia the pre-conviction term of 5 years that Applicant had served when she reduced his sentence from death to a definite custodial term of 20 years. This court is thus functus officio and the issue of Section 333(2) is res judicata as it had already been determined by a court of competent jurisdiction between the parties. The Applicant cannot keep reopening this issue at his own convenience dependent on when there is a new Judge on the block.

3. The Applicant’s conduct is what we call abuse of court process. This court will not countenance such abuse. Court proceedings must come to a closure and the Applicant’s case indeed came to a closure.

4. On the balance this application is devoid of merit and I thus dismiss it.

5. This file is marked as closed.

DELIVERED, SIGNED AND DATE IN KISUMU THIS 4THDAY OF NOVEMBER, 2024. M. S. SHARIFFJUDGE