[2021] KEHC 5942 (KLR)
The court held that the applicant's request for resentencing and consideration of time served under Section 333(2) of the Criminal Procedure Code was improperly brought after his appeal had already been dismissed by a court of concurrent jurisdiction. The court emphasized that such issues should have been raised...
Source-derived case information.
- Citation
- [2021] KEHC 5942 (KLR)
- Parties
- Applicant: Hussein Abdi Noor; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application 84 of 2019
- Procedural Posture
- Criminal Miscellaneous Application / Ruling on Application for Resentencing and Consideration of Time Served
- Outcome
- application declined
- Judges
- A Ali-Aroni
- Legal Topics
- Defilement Offence, Sentencing Principles, Application of Muruatetu, Section 333 2 Criminal Procedure Code
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Hussein Abdi Noor
Applicant
Republic
Respondent
Procedural Posture
Criminal Miscellaneous Application / Ruling on Application for Resentencing and Consideration of Time Served
Legal Issues
- 1 Whether the applicant is entitled to resentencing based on the Supreme Court decision in Muruatetu.
- 2 Whether the court should consider time served under Section 333(2) of the Criminal Procedure Code after the appeal has been dismissed.
- 3 Whether the High Court can entertain a resentencing application after the appeal has been determined.
Ratio Decidendi
The court held that the applicant's request for resentencing and consideration of time served under Section 333(2) of the Criminal Procedure Code was improperly brought after his appeal had already been dismissed by a court of concurrent jurisdiction. The court emphasized that such issues should have been raised during the appeal process, and it would be procedurally improper and unmanageable to allow convicts to bring piecemeal applications after the conclusion of appeals. The court further held that it lacked jurisdiction to sit on appeal or review a decision of a court of concurrent jurisdiction, and that any dissatisfaction with the outcome of the appeal should have been addressed to...
Court Disposition
application declined
Orders
- The application for resentencing and consideration of time served is declined.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT GARISSA
CRIMINAL MISC. APPLICATION NO. 84 OF 2019
HUSSEIN ABDI NOOR..........................................................................APPLICANT
VERSUS
REPUBLIC...........................................................................................RESPONDENT
RULING
1. The applicant moved the court in an undated application seeking to have the court consider the case of Francis Karioko Muruatetu & Another v Republic - Petition No. 15 of 2015 in reference to his own matter and therefore reconsider the sentence as well as apply the provisions of Section 333(2) of the Criminal Procedure Code, by considering the time served in custody and deem the time already served as adequate for the offence the applicant committed.
2. The application was opposed by the State on grounds that the case was proved beyond reasonable doubt, the conviction and sentence are lawful, and the same were upheld by this court as recent as 6th of August 2019 and the equally opposed the prayer seeking resentencing.
3. The applicant was charged in Chief Magistrate’s Court Case No. 3 of 2016 with the offence of defilement contrary to Section 8(1) as read with section 8(3) of the Sexual Offences Act No. 3 of 2006. He also faced an alternative count of indecent assault with a child contrary to Section 11(1) of the said Act.
4. Upon trial the applicant was convicted and sentenced to 20 years imprisonment.
Being dissatisfied with the conviction he appealed to this court in High Court Appeal No. 18 of 2018 where the appeal was dismissed, this court affirmed the conviction and sentence.
5. This court is of the view that when the applicant appealed to this court differently constituted, he ought to have raised the issue of his sentence and indeed if he considered it unconstitutional based on the principles of Muruatetu case. Secondly, he should also have raised the issue of Section 333(2) at the point.
6. It would be wrong and impossible to attend to a myriad of application after appeals have failed if convicts are allowed to bring their grievances in piecemeal.
7. I am persuaded by the decision of John Kagunda Kariuki v Republic [2019] eKLR & Sospeter Muchangi Ndwiga v Republic Criminal Revision Case No. 33 of 2019 (Embu)
8. Secondly, this court cannot sit on appeal of a judgement of a court of concurrent jurisdiction. If the applicant was dissatisfied with the outcome of the appeal, he ought to have referred this matter to the Court of Appeal.
9. For the above reasons, the application is declined.
DATED, DELIVERED AND SIGNED AT GARISSA THIS 24TH DAY OF JUNE, 2021.
......................
ALI-ARONI
JUDGE