Nalianya v Republic [2023] KEHC 24613 (KLR)

Nalianya v Republic (Petition 22 of 2019) [2023] KEHC 24613 (KLR) (3 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24613 (KLR)

Republic of Kenya

In the High Court at Bungoma

Petition 22 of 2019

REA Ougo, J

November 3, 2023

N THE MATTER OF ARTICLES 22(1) OF THE CONSTITUTION AND IN THE MATTER OF ARTICLES 23, 25 (A) (C), 28, 20 (1), 50 (2)(Q), 19 (1) (2), 165 OF THE CONSTITUTION IN THE MATTER OF SECTION 296 (2) OF THE PENAL CODE BETWEEN

Between

Boniface Anguka Nalianya

Petitioner

and

Republic

Respondent

Judgment

1. Boniface Anguka Nalianya, the petitioner, in his petition filed on the 23rd April 2019 he avers that he was charged with the offence of Robbery with Violence contrary to section 296 (2) of the Penal Code vide CRC No. 1689/2009 at CM’s Court Bungoma and sentenced to death. That he appealed to the High Court vide HCCRA No. 34 of 2009 at Bungoma and his appeal was dismissed. Being dissatisfied with the High Court decision he appealed to the Court of Appeal in 2010 and up to now he has not been given any number. His death sentence was commuted to life imprisonment by the president in 2009. He has been in custody for the last 9 years since his arrest. He prays that this court be pleased to grant orders for revision of sentence in respect of Robbery with Violence contrary to section 296 (2) of the Penal Code vide CRC No. 1689/ 2009 at CM’s Court Bungoma and also to consider the period spent in custody since his arrest. The latter is his main pray in his Notice Motion which was filed simultaneously with the petition. He reiterates what he has deponed in his petition in his supporting affidavit.

2. At the hearing of his petition, the petitioner sought to be re-sentenced. He stated that he did not go to the Court of Appeal.

3. The respondent opposed the application. Miss Omondi submitted the petitioner appeal in the High Court was dismissed by a 2-judge bench. Though he bases his petition on the Marutatetu case the said case does not apply to his case which was one of robbery with violence. This court lacks the jurisdiction to set aside the judgment of the 2-judge bench and his recourse is to appeal to the Court of Appeal.

4. Having considered the petition, and the submissions and noting that the petitioner’s appeal was heard by a 2-judge bench in the High Court, I am of the view that this court lacks the jurisdiction to consider the petitioner’s plea for re-sentencing. His only recourse as stated is before the Court of Appeal. His petition therefore lacks merit and is dismissed.

DATED, SIGNED, AND DELIVERED AT BUNGOMA THIS 3RD DAY OF NOVEMBER 2023. R.E. OUGOJUDGEIn the presence of;Boniface Anguka Nalianya/ PetitionerFor the RespondentWilkister- C/A