[2023] KEHC 21707 (KLR)
The High Court held that it was functus officio, having already determined the appellant's previous appeal and subsequent application for review. The court found that it lacked jurisdiction to entertain a further application seeking to set aside or review its own orders. The appellant's repeated attempts to...
Source-derived case information.
- Citation
- [2023] KEHC 21707 (KLR)
- Parties
- Appellant: Mohamed Abdille Hamud; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal E039 of 2022
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- application dismissed
- Judges
- JN Onyiego
- Legal Topics
- Firearms Offences, Possession Without License, Sentencing Review, Functus Officio
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mohamed Abdille Hamud
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the High Court has jurisdiction to review its own orders after dismissal of previous appeals.
- 2 Whether the appellant's application constitutes an abuse of court process.
Ratio Decidendi
The High Court held that it was functus officio, having already determined the appellant's previous appeal and subsequent application for review. The court found that it lacked jurisdiction to entertain a further application seeking to set aside or review its own orders. The appellant's repeated attempts to challenge the conviction and sentence, after dismissal of both an appeal and a review application, amounted to an abuse of the court process. The proper forum for further challenge was the Court of Appeal, not the High Court. Accordingly, the application was dismissed for want of jurisdiction and as an abuse of process.
Court Disposition
application dismissed
Orders
- The application is dismissed for lack of jurisdiction.
- The appellant is advised to approach the Court of Appeal if he wishes to pursue further remedies.
Full Case Text
Judgment text and source record
23 paragraphs
Hamud v Republic (Criminal Appeal E039 of 2022) [2023] KEHC 21707 (KLR) (28 July 2023) (Judgment)
Neutral citation: [2023] KEHC 21707 (KLR)
Republic of Kenya
In the High Court at Garissa
Criminal Appeal E039 of 2022
JN Onyiego, J
July 28, 2023
Between
Mohamed Abdille Hamud
Appellant
and
Republic
Respondent
(Being an appeal against the sentence and conviction by Hon. Mugendi Nyaga (SRM) in SPM’s Court in Wajir Criminal Case No.521 of 2018 delivered and delivered on 06. 01. 2019)
Judgment
1. The appellant herein was charged with another with the offence of being in possession of ammunition without holding a firearm certificate in force at the time Contrary to Section 4(2) (a) as read with Section 4 (3) (a) of the Firearms Act. Particulars of the offence were that on 6th day of December, 2018 in Boji Abdille Gulbet area of Wajir South Sub –County within Wajir County, were found in possession of 25 live rounds of caliber 7. 62 by 39mm in contravention of the said Act.
2. Count two, he again with his co-accused were found in possession of a specified firearm without a firearms license contrary to Section 4 (1) (a) of the Firearms Act. Particulars of the offence were that on the 6th day of December, 2018 in Boji Abdille Gulbet area of Wajir South Sub – County within Wajir County, were found in possession of a specified firearm namely AK -47 serial number MFI 732 with one magazine in contravention of the said Act.
3. Upon closure of the trial, he was convicted and sentenced to 7 years’ imprisonment in Count 1 and 14 years Count 2 to run concurrently. Aggrieved by both conviction and sentence, he filed Cr. Appeal No. 13 of 2019 which was dismissed on 7th November, 2019. Undeterred, he filed Misc. Application No. E016 of 2020 seeking review of the sentence. The application was heard and the court delivered its ruling dismissing the application for lack of jurisdiction to review its own orders.
4. The appellant went ahead and filed this appeal seeking review of the same sentence. The Respondent opposed the application stating that the appeal amounts to abuse of the court process. Learned counsel submitted that another appeal having been heard and determined the same cannot be entertained by way of review.
5. I have considered the application herein which is disguised as an appeal. There is no doubt that the appellant has approached the court three times in attempt to set aside his conviction and review of his sentence.
6. In two previous appeals, the court did dismiss the appeal. In his appeal he is seeking leniency on grounds that; he has reformed; he is remorseful; he is ready to spread the Islamic Religion and that he will abide by the law.
7. The appellant is asking this court to set aside its two previous orders in his favour. This Court is functus officio. It has no power to grant the orders sought. The appellant ought to have approached the Court of Appeal. Accordingly, the application is dismissed.
DATED, SIGNED AND DELIVERED VIRTUALLY AT GARISSA THIS 28TH DAY OF JULY, 2023. ...................................J.N. ONYIEGOJUDGE