[2017] KEHC 2086 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT GARISSA

CRIMINAL CASE NO. 25 OF 2012

IBRAHIM HARET ABDILLE………………………………APPLICANT

VERSUS

REPUBLIC………………………………………………..RESPONDENT

RULING

1. This is a rather interesting application by a convict for review of the decisions of the court.

2. He was charged in this court with 3 others with murder and convicted and sentenced to serve 10 years imprisonment for being in possession of firearm, and 10 years imprisonment for being in possession of ammunition without a certificate on 17th March, 2014. The sentences were ordered by the Judge to run concurrently, which was a total of 10 years imprisonment.

3. The same applicant was earlier charged alone and tried in Garissa Chief Magistrate’s Criminal Case No. 1085 of 2012 for being in possession of specified firearm, being in possession of ammunition without firearm certificate, and being in possession of firearm accessory. He was convicted and ordered to serve 7 years imprisonment on each of the three counts by the Magistrate’s court on 3rd October, 2013.

4. He has not appealed against any of the convictions and sentences. He has however come to this court through a letter dated 13th October, 2016 for review. The said letter states as follows:-

“This matter refers:

That, I the above mentioned appellant, do hereby beg to approach this honourable court in the above outlined matter. That I was tried at Garissa law court and sentenced to serve seven (7) years imprisonment in each of three counts of the offence. The jail terms were to run concurrently on 3rd day of October, 2013 for the offence of:

1. Being in possession of a specified forearm without a certificate contrary to Section 4A (1) A of the Firearm Act Cap. 114 Laws of Kenya.

2. Being in possession of ammunitions without a certificate contrary to Section 4 (2) (a) of the Firearm Act Cap. 114 Laws of Kenya.

3. Being in possession of a firearm accessory contrary to Section 26 (1) (e) as read with Section 26 (2) (b) of the Firearm Act Cap 114 Laws of Kenya.

Immediately thereafter, lodged an appeal within the stipulated period of fourteen (14) days.

That the appeal was heard and determined by the High Court Judge of Garissa High Court Hon. Stella Mutuku. That the appeal on determination the High Court Judge, Hon. Stella Mutuku made a decision that resulted in acquittal of the murder charge, hence 1st, 2nd 3rd and 4th accused persons were not guilty of murder.

That on determination that Learned Trial Judge, Hon. Stella Mutuku again acquitted the 1st, 2nd and 3rd accused persons except I, the appellant whom the Judge addressed her mind and made a decision that I should serve ten (10) years on the same count without cogent reasons on July 2014.

Therefore, I beg this honourable court to consider that my case and I am in custody continuing to serve penalty of the offence that I am not satisfied with. It’s my feeling that justice delayed is justice denied.

4. When the matter was mentioned in this court on 19/9/2017, the applicant stated that he had appealed from the Magistrate’s court decision under Appeal No. 25 of 2012. He said the appeal had not been heard.

5. The applicant was then given by the court a chance to bring to court any document he had on High Court Criminal Appeal No. 25 of 2012, but did not, except that I note that the heading of his above letter for review above refers to such appeal thus-

RE: APPLICATION FOR A HEARING REVIEW OF HCCR. APPEAL NO. 25 OF 2012 IN RESPECT OF CRIMINAL CASE NO. 25 OF 2012. TWICE CONVICTED IN THE SAME OFFENCE- IBRAHIM HAREL ABDILLE.

6. Mr. Okemwa the Principal Prosecuting Counsel stated that the applicant came late to court, after it dawned on him that he was to serve a total of 17 years imprisonment, instead of what he expected.

7. I agree with Mr. Okemwa as it is not possible for the applicant to have filed an appeal in 2012 from the Magistrate court’s decision as he was convicted and sentenced much later on 3/10/2013. The alleged double conviction and sentence by the High Court in Garissa High Court Criminal No. 25 of 2012 was also much later on 17th March 2014. There would therefore be no basis for the applicant filing an appeal in the year 2012 from any of the above decisions.

8. I also note that the two trials were conducted concurrently for some time, as proceedings in the High Court commenced on 4th October 2012 and Mr. Onono advocated represented the applicant. The proceedings in the Magistrate’s court on the other hand, commenced on 26/7/2012 slightly more than 2 months earlier. Between 4th October 2012 and 3/10/2013 when sentence was pronounced in the Magistrate’s court, the proceedings in the High Court and the Magistrate’s court were conducted concurrently.

9. This court’s review powers are limited. See Section 362 to 366 of the Criminal Procedure Code (Cap. 75). The High Court is empowered to correct an obvious and glaring error or errors in proceedings or decisions of subordinate courts. It cannot review the proceedings or decisions of superior courts. I find no such obvious errors or omissions of the magistrate.

10. I note that on 21/10/2013 after judgment was delivered in the magistrate’s court, Mr. Onono wrote a letter requesting for copy of charge sheet, ballistic report, certified copy of judgment and uncertified copy of proceedings presumably to appeal. The record does not indicate whether an appeal was filed, and after the present request was filed, Mr. Onono specifically asked me in this matter, to release him which the court did without informing the court whether he filed an appeal, though the Deputy Registrar of this court vide a communication dated 30th July, 2014 stated that the Appeal No. 15 of 2013 was determined on 1st July 2014 as having been withdrawn.

11. The applicant appears to be taking advantage of a confusing situation to ask for revision. He should appeal or revive his appeal No. 15 of 2013 or file a fresh appeal after obtaining leave. This court has no mandate to review the orders of another judge.

12. I thus decline to issue any of the revision orders sought. If the applicant wants to revive the Garissa High Court Criminal Appeal No. 15 of 2013 or file a fresh appeal, he can do so. An appeal from the High Court decision can only go for the Court of Appeal. The request for revision is hereby dismissed.

Dated and delivered at Garissa on 14th November, 2017.

GEORGE DULU

JUDGE