[2022] KEHC 13852 (KLR)
The High Court determined that it does not have jurisdiction to review or resentence the applicant, as the Court of Appeal—a superior court—had already upheld the lawfulness of the sentence. Article 165 of the Constitution does not confer jurisdiction on the High Court to reconsider decisions of the Court of Appeal....
Source-derived case information.
- Citation
- [2022] KEHC 13852 (KLR)
- Parties
- Applicant: Nicholas Muturi Chiande; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E056 of 2021
- Procedural Posture
- Miscellaneous Criminal Application / Sentence Review Application After Conviction and Appeal
- Outcome
- Application dismissed for lack of merit and jurisdiction.
- Judges
- DO Ogembo
- Legal Topics
- Sentence Review, Jurisdiction of High Court, Application of Muruatetu Principle, Life Sentence, Mitigation, Revision of Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nicholas Muturi Chiande
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Sentence Review Application After Conviction and Appeal
Legal Issues
- 1 Does the High Court have jurisdiction to review or resentence an applicant whose sentence has already been upheld by the Court of Appeal?
- 2 Does the Supreme Court decision in Muruatetu entitle the applicant to resentencing or sentence reduction in this case?
- 3 Should the period spent in custody be considered under section 333(2) of the Criminal Procedure Code?
Ratio Decidendi
The High Court determined that it does not have jurisdiction to review or resentence the applicant, as the Court of Appeal—a superior court—had already upheld the lawfulness of the sentence. Article 165 of the Constitution does not confer jurisdiction on the High Court to reconsider decisions of the Court of Appeal. Furthermore, even if the Muruatetu decision were applicable, the applicant failed to provide any mitigation to justify resentencing, and his sentence had already been commuted from death to life imprisonment by the President. The application for sentence review and revision was therefore dismissed for lack of merit and jurisdiction.
Court Disposition
Application dismissed for lack of merit and jurisdiction.
Orders
- The applications filed on February 25, 2021 are dismissed.
- Certified copy of the ruling to be prepared and supplied to the applicant.
Full Case Text
Judgment text and source record
26 paragraphs
Chiande v Republic (Miscellaneous Criminal Application E056 of 2021) [2022] KEHC 13852 (KLR) (11 October 2022) (Ruling)
Neutral citation: [2022] KEHC 13852 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Miscellaneous Criminal Application E056 of 2021
DO Ogembo, J
October 11, 2022
Between
Nicholas Muturi Chiande
Applicant
and
Republic
Respondent
Ruling
1. Nicholas Muturi Chiande, the applicant, has applied to this court for sentence review following the decision of the Supreme Court, in petition No 15 of 2015, Francis Karioko Muruatetu and another v Republic. This application (undated), was filed herein on February 25, 2021 and is supported by the affidavit of the applicant.
2. In the affidavit in support of the application, the applicant has deponed that he was first tried and convicted of the offence of murder in High Court Criminal Case No. 44 of 2008. That he appealed to the Court of Appeal vide criminal appeal No. 109 of 2013 which appeal was dismissed.
3. He has also applied under section 333(2) of theCriminal Procedure Code, that the period he spent in custody awaiting determination of his case be accounted for in his sentence.
4. In his oral submissions in court, the applicant confirmed that his death sentence was committed to life sentence by the President in 2014.
5. The learned counsel for the state, Mr. Mutuma, opposed this application. First, that the finding in the Muruatetu case does not offer an automatic right to reduction of sentence and that in our case, the applicant has not offered any mitigation. Also that life sentence remains a legal sentence. Lastly, that the Court of Appeal already pronounced itself in this matter, and so this court lacks jurisdiction in this matter.
6. Foremost, it is noted that upon his conviction by the High Court, the applicant moved to the Court of Appeal on appeal. His appeal was dismissed in a Judgment delivered on November 28, 2014. I have perused and considered the Judgment of the 3 Judge Bench of the Court of Appeal. At the last paragraph of the same, the Honourable Judges of Appeal, in dismissing the appeal noted:“The upshot of the above is that we find no merit in this appeal. The sentence having been lawful, we have no alternative but to dismiss this appeal in its entirety.”
7. The Court of Appeal thus made a finding that the sentence of the applicant was lawful. The issue therefore, is whether this court can reconsider the same question. Does this court have jurisdiction to reconsider the same issue that a superior court has made a finding?
8. This court obtains its jurisdiction from article 165 of the constitution. Article 165 nor any other section of the constitution confers any jurisdiction on this court to reconsider any decision or finding of the Court of Appeal, a superior court. It is for this reason that I am not convinced by the submissions of the applicant, that this court can resentence the applicant in line with the ruling in theMuruatetu case. Doing so would in effect amount to a revision of the orders of a superior court.
9. Suffice it to say, that even if the Muruatetuwere to apply herein, it would still be incumbent on the applicant to raise his mitigating factors that would justify a resentencing. This, the applicant has failed to do. And further, it is conceded that the sentence of the applicant was commuted to life sentence by His Excellency the President in 2014, and so this is not a matter of death sentence as considered in theMuruatetu case.
10. The applicant herein moved this court by way of application for revision. As stated above, I do not find any merit in both the applications filed herein (headed application, and chamber summons) filed on February 25, 2021. Same are dismissed. Orders accordingly.D. O. OGEMBOJUDGE11TH OCTOBER, 2022Court:
11. Ruling read out in the presence of the applicant (Kamiti) and Ms. Oduor for the state
D. O. OGEMBOJUDGE11TH OCTOBER, 2022Applicant:I pray for the ruling.Court:Certified copy of the ruling to be prepared and supplied.D. O. OGEMBOJUDGE11TH OCTOBER, 2022