Adan V Republic (Miscellaneous Criminal Application E008of2023) 2023KEHC27353 (KLR) (18december2023) (Ruling)

Adan v Republic (Miscellaneous Criminal Application E008 of 2023)
[2023] KEHC 27353 (KLR) (18 December 2023) (Ruling)

Neutral citation: [2023] KEHC 27353 (KLR)
REPUBLIC OF KENYA
IN THE HIGH COURT AT GARISSA
MISCELLANEOUS CRIMINAL APPLICATION E008 OF 2023
JN ONYIEGO, J
DECEMBER 18, 2023
BETWEEN
ABBULLAHI SALAT ADAN ................................................................... APPLICANT
AND
REPUBLIC ............................................................................................ RESPONDENT
RULING
1. The applicant herein was arraigned before the Wajir Principal Magistrates Court charged with two
counts as follows: Count I, he was charged with being in possession of a Firearm without a license
contrary to section 4 A(1)(a) of the Firearms Act 2012. Particulars of the oence were that on February
5, 2019 at around 1730hrs at Kanjira Trading Centre in Habasweini Sub County, within Wajir County,
he was found in possession of a re arm make RPD Machine Gun S/No. PC458, without a license.
2. Count II, he was charged with being in possession of ammunition without a license contrary to section
4(2) of the Firearms Act 2012. Particulars were that on February 5, 2019 at around 1730hrs at Kanjira
Trading Centre in Habasweini Sub County, within Wajir County, he was found in possession of 14
live rounds of 7.62MM ammunition x 39 Ammunitions without a license.
3. The applicant pleaded not guilty and the matter proceeded to trial where he was convicted of both
counts and sentenced to 5 years imprisonment on each count and sentences to run concurrently.
4. Aggrieved by the aforesaid judgment and sentence by the trial court, the applicant preferred an appeal
before this court and by a judgment delivered on December 17, 2021 by Aroni J. (as she then was), it
was dismissed for want of merit.
5. From the record, this court also noted that the applicant through his advocates, Okubasu, Munene
and Kazungu had equally lodged a notice of appeal dated December 22, 2021 to the Court of Appeal
at Nairobi seeking to quash and set aside the nding of Aroni J.
kenyalaw.org/caselaw/cases/view/279473/ 1
6. The application in a nutshell was based on the fact that the applicant had neither owned a rearm
nor ammunition in his life. That the alleged rearm and ammunitions herein were recovered from
a neighbour’s house. He contended that he had been in lawful custody from February 6, 2019 to
November 17, 2020 and therefore, the same ought to have been deducted from the sentence period.
7. It was his case that he is a father of eleven children who currently are staying at home as their school fees
remain unpaid todate. He urged this court to consider the application herein and review the sentence
to that of community service order.
8. Directions were taken that the application be canvassed by way of written submissions. The applicant
in his oral submissions reiterated the content of his application.
9. Mr. Kihara, the learned prosecution counsel in rebuttal submitted that the application herein was
incompetent as the same had been determined by a court of equal jurisdiction to this court. That this
court was therefore functus ocio. Additionally, it was stated that the applicant had since led a notice
of appeal seeking to appeal the determination by Aroni J. That the applicant ought therefore to wait
for an opportunity to argue his appeal at the Court of Appeal. As a consequence, counsel urged this
court to dismiss the application for the same was devoid of merit.
10. I have considered the application herein together with submissions by both parties. The only issue for
determination is whether the order for resentencing can be granted.
11. The applicant has invoked the resentencing jurisdiction of this court as was laid down by the Supreme
Court in Francis Karioko Muruatetu & another v Republic Petition No. 15 and 16 of 2015 where the
Learned Judges held that section 204 of the Penal Code was unconstitutional in so far as it provided
for the mandatory death sentence for the reasons that it 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...”
12. In the instant case, the applicant was convicted and sentenced by the trial court. Subsequently, he
appealed to this court and the appeal was upheld by Aroni J. (as she was then). From the record, the
applicant has since led a notice of appeal seeking to quash and set aside the determination by Aroni J.
13. It is trite that sentencing is a judicial exercise. Once a judge or a judicial ocer has pronounced a
sentence, he/she becomes functus ocio. If the sentence is illegal or inappropriate the only court which
can address it is the appellate court. Remitting a matter to the trial court which had become functus
ocio after sentencing ies in the face of the doctrine of functus ocio. It amounts to asking the trial
court to clothe itself with the jurisdiction of an appellate court. [ Also See Republic v Ongaro & another
(Criminal Case 62 of 2013) [2023] KEHC 2309 (KLR)].
14. It is this court’s considered opinion that the applicant having lodged an appeal before the Court of
Appeal at Nairobi seeking to overturn the nding by Aroni J, it would be prejudicial and embarrassing
to this court if the court of appeal were to arrive at a verdict dierent from the nding of this court.
15. From the foregoing, it is my nding that I have no jurisdiction to entertain the applicant’s application
for resentencing and as such, I am inclined to dismiss the application herein on grounds that this court
is functus oﬃcio.
DATED, SIGNED AND DELIVERED THIS VIRTUALLY THIS 18TH DAY OF DECEMBER 2023
J. N. ONYIEGO
JUDGE.

Adan V Republic (Miscellaneous Criminal Application E008of2023) 2023KEHC27353 (KLR) (18december2023) (Ruling)

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Adan v Republic (Miscellaneous Criminal Application E008 of 2023)

[2023] KEHC 27353 (KLR) (18 December 2023) (Ruling)

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