[2021] KEHC 2647 (KLR)
The court held that the Supreme Court's decision in Muruatetu does not apply to minimum or maximum sentences under the Sexual Offences Act, as clarified by subsequent directions from the Supreme Court. The court further found that the applicant's sentence had already been reviewed and reduced on appeal, and that the...
Source-derived case information.
- Citation
- [2021] KEHC 2647 (KLR)
- Parties
- Applicant: Mohamed Hassan Mohamud; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application 4 of 2020
- Procedural Posture
- Criminal Miscellaneous Application / Ruling on Application for Sentence Revision
- Outcome
- application dismissed
- Judges
- A Ali-Aroni
- Legal Topics
- Sentence Revision, Sexual Offences, Minimum Sentences, Application of Supreme Court Decisions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mohamed Hassan Mohamud
Applicant
Republic
Respondent
Procedural Posture
Criminal Miscellaneous Application / Ruling on Application for Sentence Revision
Legal Issues
- 1 Whether the Supreme Court decision in Muruatetu applies to sentences under the Sexual Offences Act.
- 2 Whether the High Court can revisit a sentence already considered on appeal and currently pending before the Court of Appeal.
Ratio Decidendi
The court held that the Supreme Court's decision in Muruatetu does not apply to minimum or maximum sentences under the Sexual Offences Act, as clarified by subsequent directions from the Supreme Court. The court further found that the applicant's sentence had already been reviewed and reduced on appeal, and that the issue is now pending before the Court of Appeal. Therefore, the High Court lacks jurisdiction to revisit the sentence at this stage. The application for sentence revision was accordingly dismissed.
Court Disposition
application dismissed
Orders
- The application for sentence revision is declined and stands dismissed.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT GARISSA
CRIMINAL MISC. APPL. NO. 4 OF 2020
MOHAMED HASSAN MOHAMUD..................APPLICANT
VERSUS
REPUBLIC.......................................................RESPONDENT
RULING
1. On the 23rd of January 2020 the Applicant filed a Chamber Summons seeking to have his sentence revised pursuant to the Supreme Court decision in the case of Francis Karioko Muruatetu & Others Petition No. 15 & 16 (consolidated) of 2015(Muruatetu decision).
2. The Applicant was charged in Criminal Case No. 225 of 2017 in SPM’s Court in Wajir with the offence of rape contrary to Section 3(1) (a) (b) of the Sexual Offences Act No. 3 of 2006.
3. The particulars of the offence are that on the 21st of April 2017, at around 11 am at Harjaley Gunana Sub-Location, Tarbaj Sub-County within Wajir County he had carnal knowledge of BK without her consent.
4. He faced an alternative count of indecent assault contrary to Section 11(1) of the said Act.
5. The Applicant pleaded not guilty, he was convicted after trial and sentenced to 15 years imprisonment.
6. He appealed to this court in High Court Criminal Appeal No. 6 of 2019, the conviction was upheld but the appeal succeeded in as far as the sentence was set aside and its place, he was sentenced to 10 years imprisonment from the date of his arrest.
7. From the court record the Applicant through his counsel preferred an appeal to the Court of Appeal after this court delivered its judgement.
8. The State opposed this application on grounds that this court rendered its judgement and though the court was then differently constituted this court discharged its duty and cannot revisit the same.
9. From the onset, it is noteworthy that the Constitution did not outlaw the Sexual Offences Act. Secondly the case of Muruatetu according to the recent directions issued by the Supreme Court on the same, dated 6th July 2021, the said decision did not make refer to other statutes or sections of the law that provide for maximum and minimum sentences save for Section 204 of the Penal Code. Neither did the Supreme Court outlaw minimum and maximum sentences as the issue was not canvassed before them save as stated above.
10. Thirdly, as submitted by the State the issue of the sentence meted out to the Applicant was canvassed on appeal and where indeed the Applicant succeeded to have the same reduced.
11. Lastly, there is a pending appeal in the Court of Appeal where this issue can be canvassed if need be.
12. For the reasons above the application is declined. It stands dismissed.
DATED, DELIVERED AND SIGNED AT GARISSA THIS 28th DAY OF OCTOBER, 2021.
.......................
ALI-ARONI
JUDGE