[2021] KEHC 2795 (KLR)
The High Court held that it lacks jurisdiction to revise or enforce Section 333(2) of the Criminal Procedure Code in respect of a sentence already determined by the Court of Appeal. The Applicant had already benefited from the Muruatetu decision when the Court of Appeal substituted the death sentence with a term of...
Source-derived case information.
- Citation
- [2021] KEHC 2795 (KLR)
- Parties
- Applicant: Mohamed Hussein Mohamed; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application 16 of 2020
- Procedural Posture
- Criminal Miscellaneous Application / Ruling on Application for Enforcement of Section 333(2) of the Criminal Procedure Code
- Outcome
- application dismissed
- Judges
- A Ali-Aroni
- Legal Topics
- Sentencing Principles, Application of Section 333 2 Cpc, Jurisdiction of High Court, Effect of Muruatetu Decision
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mohamed Hussein Mohamed
Applicant
Republic
Respondent
Procedural Posture
Criminal Miscellaneous Application / Ruling on Application for Enforcement of Section 333(2) of the Criminal Procedure Code
Legal Issues
- 1 Whether the High Court has jurisdiction to enforce Section 333(2) of the Criminal Procedure Code after the Court of Appeal has pronounced itself on sentence.
- 2 Whether the Applicant is entitled to further benefit from Section 333(2) CPC after the sentence was revised following the Muruatetu decision.
Ratio Decidendi
The High Court held that it lacks jurisdiction to revise or enforce Section 333(2) of the Criminal Procedure Code in respect of a sentence already determined by the Court of Appeal. The Applicant had already benefited from the Muruatetu decision when the Court of Appeal substituted the death sentence with a term of years. Any issue regarding the computation of sentence, including time spent in custody, should have been raised before the Court of Appeal during the appeal process. The Supreme Court's subsequent clarification of the Muruatetu decision further limits its application to the Applicant's circumstances. Accordingly, the application was dismissed for want of jurisdiction and merit.
Court Disposition
application dismissed
Orders
- The application for enforcement of Section 333(2) of the Criminal Procedure Code is dismissed.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT GARISSA
CRIMINAL MISC. APPL. NO. 16 OF 2020
MOHAMED HUSSEIN MOHAMED...........................................................APPLICANT
VERSUS
REPUBLIC..................................................................................................RESPONDENT
RULING
1. On the 20th of February 2020 the Applicant filed a Chamber Summons seeking enforcement of Section 333(2) of the Criminal Procedure Code.
2. The background to this matter is that the Applicant with others not part of this application was tried at the Chief Magistrate’s Court – Garissa with the offence of robbery with violence contrary to Section 296(2) of the Penal Code, arson contrary to Section 332(b) of the Penal Code and taking part in a riot contrary to Section 80 of the Penal Code.
3. Alongside the accused they were convicted to suffer death for the offence of robbery with violence the other sentences were held in abeyance.
4. Aggrieved by the conviction and sentence the accused appealed to this court. Two of the Appellants succeeded in their appeal. The current Applicants conviction and sentence were upheld in respect of the 1st and 3rd Counts respectively. On the 4th Count he was sentenced to 6 months which sentence was held in abeyance.
5. The Applicant appealed to the Court of Appeal which upheld the conviction and substituted the death sentence following the Muruatetu case, on 8th February 2015 the death sentence was set aside and, in its place, he was jailed for 20 years.
6. The State opposed the application on grounds that since the Court of Appeal pronounced itself on the sentence this court lacks jurisdiction and in any event the death sentence is yet to be outlawed.
7. This court cannot sit to revise a decision of the Court of Appeal.
Secondly the matter being raised now should have been raised at the time of either the 2nd appeal so that in revising the sentence the Court of Appeal would have taken up the issue.
8. The Applicant benefited from the Muruatetu judgement which was construed for a while to have applied to all other matters involving mandatory and maximum sentences.
9. The Supreme Court in its directive of 6th of July 2021 explained itself further so that if the Applicant was before the Court of Appeal today it is highly unlikely that the principles in the Muruatetu would have been applied in his situation.
10. He was lucky to have been a recipient of what the Supreme Court dubbed as a confusion in the interpretation of its judgement.
He ought not to push his luck further.
11. For the above reasons his application is dismissed.
DATED, DELIVERED AND SIGNED AT GARISSA THIS 7TH DAY OF OCTOBER, 2021.
....................
ALI-ARONI
JUDGE