Yussuf v Republic [2023] KEHC 24669 (KLR)

Yussuf v Republic (Miscellaneous Criminal Application E014 of 2022) [2023] KEHC 24669 (KLR) (31 October 2023) (Ruling)

Neutral citation: [2023] KEHC 24669 (KLR)

Republic of Kenya

In the High Court at Garissa

Miscellaneous Criminal Application E014 of 2022

JN Onyiego, J

October 31, 2023

Between

Muhamud Shuriye Yussuf

Applicant

and

Republic

Respondent

Ruling

1. The applicant was charged before Wajir Law Courts with two counts. Count one, he was charged with the offence of robbery with violence contrary to Section 296 (2) of the Penal code. Particulars were that on 8th day of August, 2019 at Adanawale location in Wajir County, Wajir west sub-county, Giriftu Division, being armed with offensive weapon namely panga robbed Keynan Gabow Adan of cash Kshs; 15,800/= and immediately before the time of such robbery cut the said Keynan Gabow Aden.

2. Count two, he was charged with the offence of Assault causing bodily harm contrary to section 251 of The Penal code. Particulars were that on 8th day of August, 2019 at Adanawale location in Wajir County, Wajir west sub-county, Griftu Division, assaulted Keynan Gabow Adan with a panga thereby occasioning him actual bodily harm

3. Upon conclusion of the trial, he was convicted and sentenced to 10 years’ imprisonment in respect of count 1 and 5 years in respect to count 2. Aggrieved by both conviction and sentence, the applicant lodged Cr. Appeal No. 48 of 2019. On 25. 2.2021, Judge Abida Ali Aroni dismissed the appeal in its entirety.

4. Undeterred, the applicant filed Misc. Criminal Application No. E014 of 2022 the subject of this ruling seeking review of Sentence based on the holding in Francis Karioko Muruatetu Constitution Petition 15 of 2015. He therefore sought Court’s leniency by reviewing sentence.

5. In response, Mr. Kihara for the State opposed the application arguing that the same is an abuse of the court process and that the court is functus officio.

6. I have considered the application herein and the response thereof. This court has been moved pursuant to the decision in Muruatetu one Petition number 15/2015 Supreme Court of Kenya where the court held that the mandatory nature of the death penalty in Murder cases was unconstitutional in so far as it denies an accused person a chance for mitigation.

7. However, Muruatetu two clarified that the finding in Muruatetu one was only applicable to murder trials only. In view of that direction, the argument by the applicant does not hold any water.

8. Further, the applicant’s appeal determined in 2021 long after Muruatetu one did consider the appeal on both conviction and sentence. I cannot revisit the same subject matter. To do so will amount to sitting as an appellate court over the decision of a court of concurrent jurisdiction. To that extent, it is my finding that this court is functus officio. Accordingly, the application is dismissed.Right of Appeal 14 days.

DATED, SIGNED AND DELIVERED IN OPEN COURT AT GARISSA THIS 31ST DAY OF OCTOBER, 2023. ................J. N. ONYIEGOJUDGE