[2023] KEHC 19487 (KLR)
The court held that it had no jurisdiction to review the sentence after the appeal had been determined and the sentence upheld by the High Court. The applicant's grounds for review, including remorse, being a first offender, and time spent in remand, had already been considered or could have been raised during the...
Source-derived case information.
- Citation
- [2023] KEHC 19487 (KLR)
- Parties
- Applicant: Abdikadir Mohamed; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E005 of 2020
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Review of Sentence
- Outcome
- application dismissed
- Judges
- JN Onyiego
- Legal Topics
- Defilement, Sentence Review, Sexual Offences Act, Remorse and Mitigation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abdikadir Mohamed
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Review of Sentence
Legal Issues
- 1 Whether the High Court has jurisdiction to review the sentence after the appeal has been determined and the court is functus officio.
- 2 Whether the applicant has established sufficient grounds for review of sentence imposed for the offence of committing an indecent act with a child.
Ratio Decidendi
The court held that it had no jurisdiction to review the sentence after the appeal had been determined and the sentence upheld by the High Court. The applicant's grounds for review, including remorse, being a first offender, and time spent in remand, had already been considered or could have been raised during the appeal. The court was functus officio and could not revisit the sentence. Consequently, the application for review was dismissed and the applicant was ordered to continue serving his sentence.
Court Disposition
application dismissed
Orders
- The application for review of sentence is dismissed.
- The applicant shall continue serving his sentence.
Full Case Text
Judgment text and source record
23 paragraphs
Mohamed v Republic (Miscellaneous Criminal Application E005 of 2020) [2023] KEHC 19487 (KLR) (30 June 2023) (Ruling)
Neutral citation: [2023] KEHC 19487 (KLR)
Republic of Kenya
In the High Court at Garissa
Miscellaneous Criminal Application E005 of 2020
JN Onyiego, J
June 30, 2023
Between
Abdikadir Mohamed
Applicant
and
Republic
Respondent
(**(Being an Appeal against the Conviction and Sentence in the Principal Magistrate’s Court at Mandera in Sexual Offences Case No. 29 of 2019 delivered by Hon. P.M. Areri (PM)**)
Ruling
1. The Appellant was charged with the offence of defilement contrary to Section 8(1) (3) of the Sexual Offences Act No 3 of 2006. He was further charged with an alternative count of committing an indecent act with a child contrary to section 11 (1) of the Sexual Offences Act. He was convicted of the alternative count and sentenced to 5 years’ imprisonment.
2. Aggrieved by the conviction and sentence, he appealed to the High Court vide Criminal Appeal No 16 of 2020. Upon hearing the appeal, the high court upheld the conviction and sentence
3. Subsequently, the applicant moved to this court again through this Miscellaneous Application file seeking review of the sentence on grounds that he was remorseful and repentant; he is the sole breadwinner of his family; he is a first offender and the court to consider the 3 months spent in remand custody.
4. The respondent (Republic) filed grounds of opposition arguing that the application lacks merit and that there is no appeal pending before court for consideration.
5. I have considered the application herein which is seeking review of the sentence. It is trite law that sentencing is at the discretion of the trial court to which an appellate court would only interfere if the same is excessive, the trial court applied wrong legal principles or considered irrelevant factors. See: Shadrack Kipkoech Kogo v Republic Eldoret Criminal Appeal No 253 of 2003 Court of Appeal.
6. In the Instant case, the high court considered the aspect of sentence and concluded that it was sufficient and appropriate in the circumstances. If the appellant was dissatisfied, he would have appealed. This court is thereforefunctus officio.
7. Accordingly, the application is dismissed. Applicant to continue serving his sentence.
Dated, signed, and delivered in open court at Garissa this 30th day of June,2023. ……………………J. N. ONYIEGOJUDGE