[2019] KEHC 9776 (KLR)
The court held that the petitioner had not exhausted the appellate process, as he had not yet appealed to the Court of Appeal against the decision of the High Court. The principles established in the Muruatetu Case regarding the review of mandatory death sentences are only applicable to convicts who have exhausted...
Source-derived case information.
- Citation
- [2019] KEHC 9776 (KLR)
- Parties
- Applicant: Mohamed Noor Hussein; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Petition 179 of 2018
- Procedural Posture
- Constitutional Petition / Ruling on Sentence Review
- Outcome
- petition struck out as premature
- Judges
- A Mabeya
- Legal Topics
- Robbery With Violence, Mandatory Sentencing, Appellate Jurisdiction, Mitigation of Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mohamed Noor Hussein
Applicant
Republic
Respondent
Procedural Posture
Constitutional Petition / Ruling on Sentence Review
Legal Issues
- 1 Whether the High Court can review the petitioner.s death sentence before exhaustion of the appellate process.
- 2 Whether the principles in the Muruatetu Case apply to the petitioner.s circumstances.
Ratio Decidendi
The court held that the petitioner had not exhausted the appellate process, as he had not yet appealed to the Court of Appeal against the decision of the High Court. The principles established in the Muruatetu Case regarding the review of mandatory death sentences are only applicable to convicts who have exhausted all avenues of appeal. Since the petitioner still had the opportunity to pursue an appeal, the petition for sentence review was deemed premature and was accordingly struck out.
Court Disposition
petition struck out as premature
Orders
- The petition is struck out for being premature.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
PETITION NO. 179 OF 2018
MOHAMED NOOR HUSSEIN.................................PETITIONER
VERSUS
REPUBLIC................................................................RESPONDENT
R U L I N G
1. Mohamed Noor Hussein (“the petitioner”)was charged before the Garissa Chief Magistrate’s Court Criminal Case No. 803 of 2003with the offence of robbery with violence contrary to section 296(2) of the Penal Code, Cap 63 of the Laws of Kenya. He was tried found guilty and convicted accordingly. He was sentenced to suffer death as per the law provided.
2. The petitioner has now petitioned this court to review his sentence of death on the basis of the Muruatetu Case.That, he has been in custody now for 15 years. That his mitigating factors were not considered.
3. I have noted that the petitioner has not yet exhausted the appellate process for his conviction and sentence. Indeed, in Meru Petition No. 205 of 2018, Mohamed Noor Hussein vs. Republic,this court directed the petitioner herein to apply for leave to be allowed to appeal to the Court of Appeal against the decision of the High Court out of time.
4. The principal in the Muruatetu Casein my view applies where a convict has already exhausted all the appellate processes. In this case, the petitioner is yet to be heard by the Court of Appeal. That being the case, this petition is premature and it is struck out.
Orders accordingly.
SIGNED at Meru
A. MABEYA
JUDGE
DATED and DELIVERED at Meru this 28th day of February, 2019.
A. ONG’INJO
JUDGE