[2021] KEHC 2770 (KLR)
The court held that the Supreme Court's decision in Muruatetu does not apply to the applicant's case, which involved a conviction and sentence under the Sexual Offences Act. The Supreme Court's directions explicitly limited the application of Muruatetu to Section 204 of the Penal Code, which concerns the mandatory...
Source-derived case information.
- Citation
- [2021] KEHC 2770 (KLR)
- Parties
- Applicant: Dakane Osman Abdi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application 3 of 2020
- Procedural Posture
- Criminal Miscellaneous Application / Ruling
- Outcome
- application dismissed
- Judges
- A Ali-Aroni
- Legal Topics
- Resentencing, Sexual Offences, Defilement, Minimum Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dakane Osman Abdi
Applicant
Republic
Respondent
Procedural Posture
Criminal Miscellaneous Application / Ruling
Legal Issues
- 1 Whether the Supreme Court decision in Muruatetu applies to the applicant's conviction and sentence under the Sexual Offences Act.
- 2 Whether the High Court has jurisdiction to resentence where it has already upheld the conviction and sentence on appeal.
Ratio Decidendi
The court held that the Supreme Court's decision in Muruatetu does not apply to the applicant's case, which involved a conviction and sentence under the Sexual Offences Act. The Supreme Court's directions explicitly limited the application of Muruatetu to Section 204 of the Penal Code, which concerns the mandatory death sentence for murder. Since the applicant was convicted of defilement and sentenced to life imprisonment under a different statute, the Muruatetu decision could not be invoked as a basis for resentencing. Furthermore, the High Court, having already dismissed the applicant's appeal against conviction and sentence, could not revisit the matter as it would amount to sitting on...
Court Disposition
application dismissed
Orders
- The application for resentencing is dismissed.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT GARISSA
CRIMINAL MISC. APPL. NO. 3 OF 2020
DAKANE OSMAN ABDI..........................................................APPLICANT
VERSUS
REPUBLIC.............................................................................RESPONDENT
RULING
1. In his application by way of a Chamber Summons filed in court on the 21st of January, 2020 the applicant seeks for resentencing based on the decision of Francis Karioko Muruatetu & Another vs Republic, Supreme Petition No. 15 & 16 (consolidated) (Muruatetu Decision).
2. The background to the case is that the applicant was initially charged with the offence of defilement contrary to Section 8(1) & (2) of the Sexual Offences Act No. 3 of 2006. He denied the charge, the matter went to full trial, he was convicted and sentenced to life imprisonment.
3. Dissatisfied with the conviction and sentenced he appealed to this court in High Court Criminal Division No. 151 of 2011 and where on the 10th of July 2014 the appeal was dismissed.
4. In his affidavit in support of the application the Appellant indicated that he has an appeal pending meaning he was dissatisfied with this court’s judgement and he preferred an appeal to the Court of Appeal. At submission he denied though that he preferred an appeal. Indicative also is that the original file remains in this court.
5. Whether there is an appeal pending or not this court (differently constituted) upheld the conviction and sentence and in the order of things this court cannot sit on appeal against a decision of a court of concurrent jurisdiction.
6. Secondly, in its recent directions dated 6th July 2021, the Supreme Court clarified and made it clear that the Muruatetu decision ought not to be interpreted as to apply to all other cases and/or statute that provide for minimum or maximum sentences as the Muruatetu case specifically dealt with Section 204 of the Penal Code.
7. Clearly therefore the Muruatetu decision does not assist or apply to the matter before court and cannot be a basis for resentensing.
8. For the reasons above the application fails.
It is dismissed.
DATED, DELIVERED AND SIGNED AT GARISSA THIS 7th DAY OF OCTOBER, 2021.
.......................
ALI-ARONI
JUDGE