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JudgmentIssa Mohamed VS3 min read

Issa Mohamed VS

High Court at Mombasa High Court · · Wendy Micheni

REPUBIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

HCCRPET NO. E002 OF 2024

(Originating from HCCRA NO. 34 OF 2010 at Mombasa and CR. Case No. 129 of 2010 at CM’s Court Kaloleni).

ISSA MOHAMED…..………...………………………….……..APPLICANT 

VERSUS

REPUBLIC...……………………….………………………….RESPONDENT 

RULING

Preliminaries

  1. Before this Court is a Notice of Motion application dated 3rd May, 2023 which sought for review of the Applicant’s sentence. The grounds of the application on the face of it and in the supporting affidavit were that:-
  2. The Honourable Court be pleased to review his sentence and grant him a lenient sentence informed by his mitigation and the unique facts and circumstances of his case pursuant to Article 50(2)(p)(q) of the Constitution of Kenya.
  3. The period spent in remand custody be computed into the eventual sentence to be awarded pursuant to the provisions of Section 333(2) of the Criminal Procedure Code and also pursuant to Jona & 87 Others – Versus – Kenya Prison Service & 2 Others (Petition 15 of 2020) [2021] KEHC 457 (KLR).
  4. The Honourable Court be pleased to grant him probation orders if his circumstances so fit
  5. Any other order that the Honourable Court deems fit to give in the interest of justice.
  6. The Applicant was charged with the offence of Defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 2 of 2006.

Issues for Determination

  1. On perusal of the application, the affidavits and the submissions, the issues for determination herein are twofold:-
  2. Whether this court has jurisdiction to hear and determine this application;
  3. If so, to determine whether the applicant is entitled to the orders sought herein.

Analysis and Determination

  1. It is not in dispute that the Applicant filed an Appeal in this Court HCCRA No. 34 of 2010 seeking to have his conviction overturned and vacation of his sentence. The same was dismissed and the conviction and sentence affirmed.
  2. The Applicant has now filed an application based on Section 333(2) of the Criminal Procedure Code stating that the court did not into account the time spent in custody.  Section 333(2) provides:-

“Subject to the provisions of Section 38 of the Penal Code (Cap.63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.  Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.”

  1. This is what the Applicant ought to have included in the Appeal so that the same court would address the all issues on sentence review together.  In my considered view, the applicant lost his chance to apply for review under Section 333(2).  Filing this particular application in this court after another high Court addressed review amounts to a multiplicity of applications which courts must discourage.
  2. If this Court was to determine this application it would in essence be reviewing the sentence affirmed by the judge in HCCRA 34 OF 2010 and the Appeal dismissed. The principle of res judicata which is applicable to both civil and criminal cases is alive to issues that were not pleaded and which ought to have been pleaded in the court that was competent to determine those issues.  The applicant herein cannot be accorded another opportunity for review of sentence that has already been reviewed by a competent court and a court of equal status.
  3. Further considering the facts of the Trial Court, the Applicant attacked a 7-year-old and defiled her. I concur with the Trial Court the Applicant is a person who should be kept away from society.

Conclusion and Disposition

  1. Consequently, I find this Application incompetent due to offending the principle of res judicata. The fact that this court lacks jurisdiction also renders this application incompetent.
  2. This application is hereby struck out for being improperly before this court.

IT IS SO ORDERED ACORDINGLY.

RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS …….…………DAY OF ………………………..…….., 2025

……………………………………………………..

HON. LADY JUSTICE W. M. KAGENDO

(JUDGE)

HIGH COURT OF KENYA AT MOMBASA

(CRIMINAL DIVISION)

In the presence of:

M/s. Bebora, Court Assistant;

……………Ms. Maina……………State Counsel;

………………………………………….…Applicant.

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