[2023] KEHC 26082 (KLR)

Hassan v Prosecutor (Miscellaneous Criminal Application 74 of 2019) [2023] KEHC 26082 (KLR) (17 November 2023) (Ruling)

Neutral citation: [2023] KEHC 26082 (KLR)

Republic of Kenya

In the High Court at Garissa

Miscellaneous Criminal Application 74 of 2019

JN Onyiego, J

November 17, 2023

Between

Mohamed Mohamud Hassan

Applicant

and

Prosecutor

Respondent

Ruling

1. The applicant herein moved this court via chamber summons filed in court on 23. 08. 2019 seeking the following orders that:i.Spent.ii.The court be pleased to consider the constitutionality of the mandatory nature of sentence imposed under the Sexual Offences Act No. 3 of 2006 as prayed herein.iii.The Honourable Court be pleased to allow a retrial for resentencing to conform with Supreme Court directives in Petition No. 15 of 2015 Francis Karioko Muruatetu & Another v Rep.

2. The application is premised on the grounds on its face and further supported by an affidavit sworn by Mohamed Mohamud Hassan in which he deponed that he was charged in Criminal Case No. 24 of 2009 with the offence of defilement contrary to section 8(1)(2) of the Sexual Offences Act No. 3 of 2006 at Mandera Law Court in Criminal. That thereafter, he was convicted and sentenced to life imprisonment. He further deponed that there is a pending appeal before the Court of Appeal which he was not willing to pursue. He referred this court to Petition No. 15 of 2015 Francis Karioko Muruatetu & Another wherein he urged this court to consider the constitutionality of mandatory sentences in reference to the offence he was charged with.

3. He pleaded that he was remorseful for his actions and urged this court to consider the fact that he had spent a period of 22 years in prison. He contended that he has since reformed and rehabilitated and therefore deserving of the prayers sought.

4. When the matter came up for hearing, Mr. Makaka for the applicant sought to rely on the submissions filed.

5. Mr. Kihara the learned prosecutor orally submitted by opposing the application stating that the same was devoid of merit. He further stated that the appellant had previously preferred an appeal on his conviction and sentence via High Court Criminal Appeal No. 253/09 at Milimani which was dismissed. That this court thus is functus officio and as such, it must down its tools.

6. Mr. Makaka on a rejoinder reiterated the contents of the application thus submitting that the application sought for resentencing hence not an appeal.

7. Further, from the undated submissions filed by the applicant, it was submitted that the applicant was convicted and thereafter sentenced in Criminal Case No. 283 of 2009 at Mandera Law Courts having been charged with the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act No. 3 of 2006. That he was thereafter sentenced to serve life imprisonment. He urged that owing to the new jurisprudential development and more so in reference to Petition No. 15 of 2015 Francis Karioko Muruatetu & Another which annulled the mandatory nature of death sentence and which reasoning was recently extended to sexual offences cases, this Honourable Court allows his prayers.

8. I have considered the application herein together with the submissions by both parties. In my view, the only issue for determination is whether the order for resentencing can be granted.

9. The applicant has invoked the resentencing jurisdiction of this court as was laid down by the Supreme Court in Francis Kariuki Muruatetu & Another v Republic Petition No. 15 and 16 of 2015 wherein the Learned Judges held that Section 204 of the Penal Code was unconstitutional in so far as it provided for the mandatory death sentence for the reasons that it limited the trial court’s exercise of discretion while sentencing. The court while remitting the matter to the High Court for re- hearing on sentence held that: -“The facts in this case are similar to what has been decided in other jurisdictions. Remitting the matter back to the High Court for the appropriate sentence seems to be the practice adopted where the mandatory death penalty has been declared unconstitutional. We therefore hold that the appropriate remedy for the petitioners in this case is to remit this matter to the High Court for sentencing...”

10. From the guidelines by the Supreme Court in the case of Francis Karioko Muruatetu & Another v Republic (two) the decision of Muruatetu one apply only in respect to sentences of murder under Sections 203 and 204 of the Penal Code; the same also clarified that all offenders who had been subject to the mandatory death penalty and desired to be heard on sentence would be entitled to re-sentencing hearing.

11. In the instant case, the record shows that the applicant previously appealed this matter via High Court Criminal Appeal No. 225 of 2009 wherein the said appeal was dismissed. Under muruatetu two, it was clarified that the holding in muruatetu one was only relevant to murder cases. It therefore follows that this court is functus officio as the applicant’s recourse lies elsewhere and not in the holding of Muruatetu one. In any event, the applicant has a pending appeal before the court of Appeal which is yet to be determined. In my view, the right court is the court of appeal to determine the issues raised herein.

12. For the foregoing reasons, the upshot of this court’s decision is that the applicant’s prayer for resentencing is hereby declined.

DATED, SIGNED AND DELIVERED THIS 17TH NOVEMBER 2023J.N. ONYIEGOJUDGE