Ali v Republic [2024] KEHC 2823 (KLR)

Ali v Republic (Criminal Revision E001 of 2024) [2024] KEHC 2823 (KLR) (8 March 2024) (Ruling)

Neutral citation: [2024] KEHC 2823 (KLR)

Republic of Kenya

In the High Court at Garissa

Criminal Revision E001 of 2024

JN Onyiego, J

March 8, 2024

Between

Mohamud Adan Ali

Applicant

and

Republic

Respondent

Ruling

1. The applicant herein was arraigned before Wajir SRM’s court charged with the offence of defilement contrary to section 8(1)(2) of the Sexual Offences Act No. 3 of 2006. Having returned a plea of not guilty, the matter proceeded to full trial. Upon conclusion of the trial, he was convicted and sentenced to life imprisonment.

2. Aggrieved by the said conviction and sentence, the applicant appealed against the impugned judgment before this court via High Court Criminal Appeal No. 41 of 2012 which appeal was dismissed by S.N. Mutuku J. on 05. 06. 2014.

3. The appellant has approached this court once more seeking for an opportunity for mitigation and resentencing. He urged that he has been in prison since 2012 and has since undergone rehabilitation.

4. On the other hand, Mr. Kihara, counsel for the respondent opposed the said application arguing that the applicant has a pending appeal lying before the Court of Appeal. That this court is functus officio and therefore, the applicant should seek for his remedy elsewhere.

5. I have considered the application and the oral submissions by the parties herein. The main issue for determination is whether this Honourable Court has jurisdiction to determine the application herein and issue the orders sought.

6. It is not in dispute that having been aggrieved by the judgement of the trial court the applicant appealed to this court and the appeal was heard and determined.

7. In John Kamau Gachuha v Republic [2019] eKLR the Court held as follows;“…. The applicant merely seeks the imposition of a more lenient sentence. This court has no revision jurisdiction over an appeal it has concluded. The applicant’s only option is to appeal in the Court of Appeal…”

8. The appellant’s appeal having been dismissed, the remedy available to him now lies elsewhere as this court does not have jurisdiction to determine the issues raised in the application. The same was buttressed by the fact that the applicant did not oppose the submission by counsel for the respondent that he had a pending appeal before the Court of Appeal. I say so for the reason that if the submissions by Counsel for the respondent is anything to go by, then therein lies the right jurisdiction to determine the prayers sought herein.

9. In the foregoing, it is my finding that the application filed on 09. 01. 2024 lacks merit and the same is hereby dismissed.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 8TH DAY OF MARCH, 2024. J. N. ONYIEGOJUDGE