[2023] KEHC 26131 (KLR)

Musa v Republic (Miscellaneous Application 101 of 2019) [2023] KEHC 26131 (KLR) (17 November 2023) (Ruling)

Neutral citation: [2023] KEHC 26131 (KLR)

Republic of Kenya

In the High Court at Garissa

Miscellaneous Application 101 of 2019

JN Onyiego, J

November 17, 2023

IN THE MATTER OF ARTICLES 21(1) (3)(4), 22,25 (A) (C) (D), 27,28,29(A) (C) (D) (F), 47,48,50(2) (P) (Q) (4), 159,165,258 AND 259 OF THE CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF SECTION 203 AS READ WITH 204 OF THE PENAL CODE CAP 63, LAWS OF KENYA AND IN THE MATTER OF SECTION 216 AND 329 OF THE CRIMINAL PROCEDURE CODE CAP 75, LAWS OF KENYA AND IN THE MATTER OF HIGH COURT CRIMINAL CASE NO. 80/2014 AT GARISSA HIGH COURT

Between

Ali Ibrahim Musa

Applicant

and

Republic

Respondent

Ruling

1. The applicant herein was tried and convicted of the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code and thereafter sentenced to suffer death. He subsequently appealed to the court of appeal Nairobi vide criminal appeal No.18 of 2014. The appeal against conviction was subsequently dismissed but sentence was reviewed to life imprisonment.

2. Subsequently, he filed the current application on 4th December 2019 under certificate of urgency seeking orders as follows:i.Spent.ii.That the Honourable Court be pleased to allow a review for resentencing to conform with Supreme Court directives in Petition No. 15 of 2015. iii.That this court be pleased to make a determination that it is within the applicant’s constitutional right under Article 22 of the constitution to institute the proceedings.iv.That the court be pleased to breathe life to sections 216 and 239 of the Criminal Procedure Code in reference to the offence herein.

3. The application in a nutshell is based on averments contained in an affidavit in support of the application wherein he averred that after having been tried, convicted and sentenced to suffer death, the said sentence was later commuted to life imprisonment through a presidential decree. It was stated that in reference to the Supreme Court judgment in Petition No. 15 of 2015, Francis Karioko Muruatetu & Another v Republic [2017] eKLR, this application is fit for sentence rehearing. It was the applicant’s further case that previously, he had appealed the said conviction and sentence before the Court of Appeal at Nairobi and the Court of Appeal substituted the death sentence to life imprisonment.

4. Directions were taken that the application be canvassed by way of written submissions.

5. The applicant in his oral submissions submitted that this court be pleased to allow the prayers sought and further consider the period of time spent in jail. That it is in the interest of justice that the application herein be allowed.

6. The learned prosecution counsel appearing for the prosecution orally opposed the application urging this court to dismiss the application for lack of merit. I have considered the application herein together with the submissions by both parties. The only issue for determination is whether the order for resentencing can be granted.

7. The applicant has invoked the resentencing jurisdiction of this court as was laid down by the Supreme Court in Francis Kariuki Muruatetu & Another v Republic Petition No. 15 and 16 of 2015 wherein the Learned Judges held that Section 204 of the Penal Code was unconstitutional in so far as it provided for the mandatory death sentence. The rationale behind the court’s reasoning was that the relevant provision limited the trial court’s exercise of discretion while sentencing. The court while remitting the matter to the High Court for re- hearing on sentence held that: -“The facts in this case are similar to what has been decided in other jurisdictions. Remitting the matter back to the High Court for the appropriate sentence seems to be the practice adopted where the mandatory death penalty has been declared unconstitutional. We therefore hold that the appropriate remedy for the petitioners in this case is to remit this matter to the High Court for sentencing...”

8. From the guidelines by the Supreme Court in the case of Francis Karioko Muruatetu & Another v Republic two, Muruatetu one only applied in respect to sentences of murder under Sections 203 and 204 of the Penal Code;

9. The Supreme Court was categorical that an application for re-sentencing arising from a trial before the High Court could only be entertained by the High Court. That it is the same court which has jurisdiction to do so and the same informs the reason why the application herein is currently before this court. It was also emphatic that where an appeal was pending before the Court of Appeal, the High Court would entertain an application for re-sentencing upon being satisfied that the appeal had been withdrawn.

10. In the instant case, the record shows that the applicant having been sentenced to suffer death by Ombija J, and having been dissatisfied with the said conviction and sentence, appealed the same before the Court of Appeal at Nairobi. The record shows that via HCR 80/2014, the Court of Appeal muted the death sentence to life imprisonment.

11. This court having had regard to the Supreme court’s directions in reference to the case of Francis Karioko Muruatetu & Another v Republic (Supra) and bearing in mind the Sentencing Policy Guidelines, 2016 of the Judiciary, it is it’s my considered view that this case does not deserve its discretion to review the life imprisonment sentence meted out on the applicant by the Court of Appeal. This court therefore lacks the jurisdiction to determine on a matter already determined by a senior superior court.

12. For the foregoing reasons, the upshot of this court’s decision is that the applicant’s prayer for re-sentencing is hereby declined.

DATED, SIGNED AND DELIVERED VIRTUALLY AT GARISSA THIS 17TH DAY OF NOVEMBER 2023. J.N. ONYIEGOJUDGE