Ndeda v Republic [2022] KEHC 13772 (KLR)

Ndeda v Republic (Miscellaneous Criminal Application 76 of 2018) [2022] KEHC 13772 (KLR) (6 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13772 (KLR)

Republic of Kenya

In the High Court at Kakamega

Miscellaneous Criminal Application 76 of 2018

PJO Otieno, J

October 6, 2022

Between

Gideon Indire Ndeda

Applicant

and

Republic

Respondent

Ruling

1. Before me is an application for re-sentence hearing by the Applicant in light of the decision by the Supreme Court in Francis Karioko Muruatetu & another v Republic [2017] eKLR.

2. The Applicant had been charged at the SRM Court in Vihiga with the offence of Robbery with Violence contrary to Section 296 (2) of the Penal Code and convicted to death.

3. Aggrieved with the decision, the Applicant filed Criminal Appeal No. 149 of 2004 at Kakamega High Court where his conviction and sentencing was upheld. He did not tire but proceeded to the Court of Appeal which he says did not hear this case todate. See paragraph 4 of the Notice of Motion.

4. Following the decision of the Muruatetu case, supra, the Applicant is asking this court to exercise its discretion on sentencing and review his sentence. A re-sentencing report has been prepared by the Senior Probation Officer, Vihiga County Probation Office which recommends that the Applicant be released or be given a reduced sentence.

5. The Respondent objects to the application by the Applicant and the recommendation by the Probation Officer by arguing that the Muruatetudecision does not apply.

6. As noted hereinabove, the High Court at Kakamega had in the year 2008 affirmed the conviction and sentence and the Applicant averse that he did appeal to the Court of Appeal, popularly known to inmates as ‘the Kenya Court’ and he is yet to be heard.

7. That there is an appeal pending before the Court of Appeal means that the Appellant is yet to exhaust his right of appeal and his recourse to resentencing, even if the same was applicable to none murder offences, has not yet accrued.

8. However, the directions of the Supreme Court dated 6. 7.2021 limits the application of Muruatetu’s case to murder cases and not every other case by which one has been sentenced to serve a mandatory sentence.

9. For the twin reasons that there is an appeal pending before the Court of Appeal and that the accused was charged, convicted and sentenced for the offence of robbery with violence and not murder, I do find no merit in the application for resentencing.

10. For the above reasons, this court finds the application for resentencing by the Applicant to lack merit and is thus dismissed.

DATED, SIGNED AND DELIVERED AT KAKAMEGA, THIS 6TH DAY OF OCTOBER 2022. PATRICK J. O. OTIENOJUDGEIn the presence of:Applicant in personMs. Chala for the RespondentCourt Assistant: Polycap Mukabwa