[2023] KEHC 21200 (KLR)
The court held that it had already exercised its jurisdiction by substituting the applicant's life sentence with a 30-year term on appeal. As such, it was functus officio and lacked legal grounds to further review or alter the sentence. The application for further review was therefore dismissed for lack of merit.
Source-derived case information.
- Citation
- [2023] KEHC 21200 (KLR)
- Parties
- Applicant: Abdiaziz Adan Mohamed; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E013 of 2023
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Review of Sentence
- Outcome
- application dismissed
- Judges
- JN Onyiego
- Legal Topics
- Sentence Review, Functus Officio, Criminal Appeal, Remorse and Rehabilitation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abdiaziz Adan 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 further review a sentence already substituted on appeal.
- 2 Whether the principle of functus officio bars the court from entertaining a further application for sentence review.
Ratio Decidendi
The court held that it had already exercised its jurisdiction by substituting the applicant's life sentence with a 30-year term on appeal. As such, it was functus officio and lacked legal grounds to further review or alter the sentence. The application for further review was therefore dismissed for lack of merit.
Court Disposition
application dismissed
Orders
- The application for review of sentence is dismissed for lack of merit.
Full Case Text
Judgment text and source record
21 paragraphs
Mohamed v Republic (Miscellaneous Criminal Application E013 of 2023) [2023] KEHC 21200 (KLR) (28 July 2023) (Ruling)
Neutral citation: [2023] KEHC 21200 (KLR)
Republic of Kenya
In the High Court at Garissa
Miscellaneous Criminal Application E013 of 2023
JN Onyiego, J
July 28, 2023
IN THE MATTER OF: ARTICLE 25 (c) OF THE CONSTITUTION OF KENYA IN THE MATTER OF; ARTICLE 50 (2)(q) OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF: SECTION 329 OF THE CRIMINAL PROCEDURE CODE AND IN THE MATTER OF: SECTION 364 OF THE CRIMINAL PROCEDURE CODE AND IN THEMATTEROF; ARTICLES 23 AND 159 OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF: HCCRA NO. 002 OF 2015 AT GARISSA HIGH COURT AND IN THE MATTER OF; CRIMINAL CASENO. 1104OF 2012 AT GARISSA LAW COURT
Between
Abdiaziz Adan Mohamed
Applicant
and
Republic
Respondent
Ruling
1. The applicant was charged with 9 counts of which he was convicted of count 1 and 2 for engaging in acts intended to cause grievous harm contrary to section 231 of the Penal Code. He was consequently sentenced to life imprisonment for each of the two counts.
2. Dissatisfied with both the conviction and sentence, he appealed to Garissa High Court vide Cr Case 2/2015. Upon hearing the appeal, Justice Dulu upheld the conviction and substituted the sentence of life imprisonment to 30 years’ imprisonment for each count.
3. Undeterred, he moved to this court again vide an undated chamber summons but filed on June 5, 2023 seeking review of the sentence on grounds that; he had reformed; he was remorseful and that, the sentence was excessive. The state opposed the application stating that the court was functus officio.
4. I have considered the application herein and response thereof. There is no dispute that this court has had the chance to consider the issue of sentence and in its wisdom reduced it from life sentence to 30 years’ imprisonment.
5. To that extent, this court has no legal ground to stand on to further review the sentence. I do agree with Mr Kihara for the state that the court is functus officio. Accordingly, the application is dismissed for lack of merit.
DATED, SIGNED AND DELIVERED VIRTUALLY AT GARISSA THIS 28TH DAY OF JULY, 2023………………….J.N. ONYIEGOJUDGE