[2024] KEHC 1220 (KLR)
The court held that it does not have jurisdiction to review or resentence a matter after it has already determined an appeal from the trial court. The applicant, having already appealed to the High Court and had the appeal determined, cannot seek a further review or resentencing from the same court. The only remedy...
Source-derived case information.
- Citation
- [2024] KEHC 1220 (KLR)
- Parties
- Applicant: Abubakar Bashir Issack; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E026 of 2023
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Resentencing Application After Conviction and Appeal
- Outcome
- application dismissed for lack of jurisdiction
- Judges
- JN Onyiego
- Legal Topics
- Defilement Offences, Sentencing Jurisdiction, Sexual Offences Act, Appellate Review, Resentencing Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abubakar Bashir Issack
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Resentencing Application After Conviction and Appeal
Legal Issues
- 1 Whether the High Court has jurisdiction to review or resentence after it has already determined an appeal from the trial court.
- 2 Whether the applicant is entitled to a reduction of sentence to account for time spent in remand custody.
Ratio Decidendi
The court held that it does not have jurisdiction to review or resentence a matter after it has already determined an appeal from the trial court. The applicant, having already appealed to the High Court and had the appeal determined, cannot seek a further review or resentencing from the same court. The only remedy available to the applicant is to approach the Court of Appeal for any further relief. The application for resentencing or reduction of sentence to account for time spent in remand custody was therefore dismissed for want of jurisdiction.
Court Disposition
application dismissed for lack of jurisdiction
Orders
- The application filed on 02.10.2023 is dismissed.
Full Case Text
Judgment text and source record
24 paragraphs
Issack v Republic (Miscellaneous Criminal Application E026 of 2023) [2024] KEHC 1220 (KLR) (31 January 2024) (Ruling)
Neutral citation: [2024] KEHC 1220 (KLR)
Republic of Kenya
In the High Court at Garissa
Miscellaneous Criminal Application E026 of 2023
JN Onyiego, J
January 31, 2024
Between
Abubakar Bashir Issack
Applicant
and
Republic
Respondent
Ruling
1. The applicant herein was charged and found guilty of the offence of defilement contrary to section 8(1)(2) of the Sexual Offences Act No. 3 of 2006. Particulars were that on 10. 01. 2018 at [Particulars Withheld], Mandera East Sub – County, Mandera County intentionally caused his penis to enter the anus of AAM, a boy aged 2 years.
2. The trial court sentenced the applicant to thirty (30) years imprisonment with effect from 10. 01. 2018 being the date of his arrest.
3. The appellant approached this court seeking an alternative sentence in reference to the recent development in resentencing pursuant to the findings in the cases of Philip Mueke Maingi & 5 Others v Republic Petition No. E017 of 2021 at Machakos and Andrew Wachira & 9 Others v RepublicPetition No. 97 of 2021 at Mombasa.
4. At the hearing of the application, the applicant instead urged this court to consider reducing his sentence to include the period spent in remand in custody. Mr. Kihara for the respondent did not object to the same.
5. I have considered the application, the oral submissions and the authorities cited. The main issue is whether this Honourable Court has jurisdiction to determine the application herein.
6. It is not in dispute that having been aggrieved by the judgement of the trial court the applicant appealed to this court and the appeal was heard and determined. It then follows that the applicant is seeking this court to sit in an appellate capacity by reviewing its own decision.
7. In John Kamau Gachuha v Republic [2019] eKLR the Court held as follows;“…The applicant merely seeks the imposition of a more lenient sentence. This court has no revision jurisdiction over an appeal it has concluded. The applicant’s only option is to appeal in the Court of Appeal…”
8. In John Kagunda Kariuki v Republic[Supra] eKLR the Court held as follows;“In the present case, the Applicant’s appeal has already been heard by the High Court. He cannot return to the High Court for a review of the sentence imposed. He is at liberty to make an argument for reduced sentence at the Court of Appeal…”
9. The only remedy available to the applicant in the circumstances of this case is to approach the court of appeal as this court does not have jurisdiction to determine the issues raised in the application. In the foregoing, it is my finding that the application filed on 02. 10. 2023 lacks merit and the same is hereby dismissed.
Dated, signed delivered virtually this 31st day of January 2024J. N. ONYIEGOJUDGE