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The applicant was charged with robbery with violence contrary to Section 296 (2) of the Penal code.
He was tried , convicted and sentenced to death.
The applicant has moved this court for resentencing citing the decision of the court in Constitutional petition No. 5 as consolidated with 6 of 2022 at Mombasa Shaban Salim Ramadhan & Others Vs. Attorney General and the Director of Public Prosecution {2024] KEHC 1173 (KLR) by the learned Honorable Lady Justice Olga Sewe in which the court delivered that the mandatory nature of the death Penalty as provided for under Section 296 (2) and 279 (2) of the Penal code is unconstitutional.
The Applicant has admitted that he has exhausted his avenues of appeal.
The state has through MS OGEGA opposed the application on the basis that this court lacks jurisdiction to entertain the same considering that the court of Appeal affirmed the sentence.
This court finds that indeed it has no jurisdiction to reopen the issue of sentence considering that the High court had dealt with the same on appeal and the court of Appeal as well.
The applicant cannot move this court to invalidate a decision of a court of concurrent jurisdiction and a decision of a Supreme Court.
To do so would be to undermine the hierarchy of courts, as well as create jurisprudential chaos in the manner our courts dispense justice.
The death sentence is lawful and constitutional.
The mandatories of it, is what should be canvassed before the appropriate forum which in this case would the Court of Appeal which upheld the sentence.
In the spirit of the decision in Owners of Motor Vessel “Lilian’s” case Vs. Caltex Oil Ltd [1989] eKLR this court downs its tools and orders that this application be accordingly struck out.
It is so ordered.
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The applicant was charged with robbery with violence contrary to Section 296 (2) of the Penal code.
He was tried , convicted and sentenced to death.
The applicant has moved this court for resentencing citing the decision of the court in Constitutional petition No. 5 as consolidated with 6 of 2022 at Mombasa Shaban Salim Ramadhan & Others Vs. Attorney General and the Director of Public Prosecution {2024] KEHC 1173 (KLR) by the learned Honorable Lady Justice Olga Sewe in which the court delivered that the mandatory nature of the death Penalty as provided for under Section 296 (2) and 279 (2) of the Penal code is unconstitutional.
The Applicant has admitted that he has exhausted his avenues of appeal.
The state has through MS OGEGA opposed the application on the basis that this court lacks jurisdiction to entertain the same considering that the court of Appeal affirmed the sentence.
This court finds that indeed it has no jurisdiction to reopen the issue of sentence considering that the High court had dealt with the same on appeal and the court of Appeal as well.
The applicant cannot move this court to invalidate a decision of a court of concurrent jurisdiction and a decision of a Supreme Court.
To do so would be to undermine the hierarchy of courts, as well as create jurisprudential chaos in the manner our courts dispense justice.
The death sentence is lawful and constitutional.
The mandatories of it, is what should be canvassed before the appropriate forum which in this case would the Court of Appeal which upheld the sentence.
In the spirit of the decision in Owners of Motor Vessel “Lilian’s” case Vs. Caltex Oil Ltd [1989] eKLR this court downs its tools and orders that this application be accordingly struck out.
It is so ordered.
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