[2023] KEHC 21184 (KLR)
The High Court held that the Muruatetu principle, which declared the mandatory death sentence unconstitutional, is only applicable to murder cases and not to other offences such as defilement. The applicant's sentence had already been considered and enhanced on appeal, and the appellate court had specifically...
Source-derived case information.
- Citation
- [2023] KEHC 21184 (KLR)
- Parties
- Applicant: Ibrahim Abdi Hassan; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E023 of 2021
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Review of Sentence
- Outcome
- application dismissed
- Judges
- JN Onyiego
- Legal Topics
- Sentence Review, Defilement Offence, Muruatetu Principle, Functus Officio, Sexual Offences Act
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ibrahim Abdi Hassan
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Review of Sentence
Legal Issues
- 1 Whether the High Court can review or reduce the applicant's sentence in light of the Muruatetu decision.
- 2 Whether the principle in Muruatetu applies to offences other than murder, specifically defilement.
- 3 Whether the High Court is functus officio after determining the appeal and enhancing the sentence.
Ratio Decidendi
The High Court held that the Muruatetu principle, which declared the mandatory death sentence unconstitutional, is only applicable to murder cases and not to other offences such as defilement. The applicant's sentence had already been considered and enhanced on appeal, and the appellate court had specifically addressed the issue of when the sentence was to commence. The High Court found that it was functus officio, having already pronounced itself on the matter in the appellate process, and therefore lacked jurisdiction to review or alter the sentence. Consequently, the application for review of sentence was dismissed for lack of merit.
Court Disposition
application dismissed
Orders
- The application for review of sentence is dismissed.
Full Case Text
Judgment text and source record
21 paragraphs
Hassan v Republic (Miscellaneous Criminal Application E023 of 2021) [2023] KEHC 21184 (KLR) (28 July 2023) (Ruling)
Neutral citation: [2023] KEHC 21184 (KLR)
Republic of Kenya
In the High Court at Garissa
Miscellaneous Criminal Application E023 of 2021
JN Onyiego, J
July 28, 2023
Between
Ibrahim Abdi Hassan
Applicant
and
Republic
Respondent
Ruling
1. The applicant was charged before Garissa Chief Magistrates court with the offence of defilement contrary to section 8 (1) (4) of theSexual Offences Act. Upon conclusion of the trial, he was sentenced to 15 years’ imprisonment. Subsequently, he appealed to the High Court vide Criminal Appeal No 32 of 2019. After hearing the appeal, the court enhanced sentence to 20 years.
2. Subsequently, he filed what is being referred to as a plea for leniency. He sought this court to review its sentence in view of the holding in Muruatetu 1 case. The respondent opposed the application on grounds that the court had become functus officio as it had pronounced itself on appeal.
3. I have considered the application herein and the response thereof. The applicant is seeking review of sentence under the Muruatetu principle and Section 333 (2) of the Criminal Procedure Code.
4. Under Muruatetu one decision, mandatory death sentence was declared unconstitutional. Thereafter, Muruatetu 2 clarified by stating that Muruatetu 1 was only applicable to murder cases. In view of the holding in both Muruatetu cases, the applicant does not qualify.
5. However, the Learned judge did specifically address the element of sentence. The Hon Judge stated that sentence was to start running from the date of sentence. This court cannot set aside that sentence as it will amount to sitting on my sister’s decision in an appellate capacity. Only the court of appeal will do that. In other words, the issue of sentence is spent.
6. In view of the above holding, I do not find merit in the application hence the same is dismissed.
DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 28TH DAY OF JULY, 2023. …………………J. N. ONYIEGOJUDGE