[2022] KEHC 16297 (KLR)

Egesimba & another v Republic (Miscellaneous Criminal Application 237 of 2021) [2022] KEHC 16297 (KLR) (Crim) (15 November 2022) (Ruling)

Neutral citation: [2022] KEHC 16297 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Miscellaneous Criminal Application 237 of 2021

JM Bwonwong'a, J

November 15, 2022

Between

Nnamdi Egesimba

1st Applicant

Leila Munyiva Muli

2nd Applicant

and

Republic

Respondent

(Being an application for review of the sentence imposed by Hon. L.O Onyina (S.P.M) on 6th July 2018 in JKIA Chief magistrate’s Court in Criminal Case No. 149 of 2016 Republic vs Leila Munyiva Muli and Nnamdi Egesimba Criminal Appeal 153 of 2019 )

Ruling

1. The applicants were charged with the offence of trafficking in narcotic drugs contrary to section 4 (a) of the Narcotic Drugs and Psychotropic Substances (Control) Act before the Senior Principal Magistrates Court at Jomo Kenyatta International Airport (JKIA) in Criminal Case No. 149 of 2016.

2. They pleaded not guilty and were tried, convicted, and sentenced to serve fifteen years imprisonment each. In addition, they were each sentenced to a fine of Kshs. 18 million in default to serve one (1) year imprisonment.

3. Dissatisfied by the decision of the trial court, they appealed against the conviction and sentence in Criminal Appeal Nos. 128 and 129 of 2018 in the High Court. On 10th July 2019, Kimaru J dismissed the appeal on conviction and sentence. Aggrieved by the decision of the High Court, the applicants launched an appeal in the Court of Appeal in Criminal Appeal No. 153 of 2019 against the sentence imposed by the trial court. On 4th December 2020, Koome JA (as she then was), Musinga JA and Sichale JA, dismissed the appeal upholding the sentences imposed by the two courts below.

4. The applicants have now approached this court by a chamber summons dated 14th July 2021 seeking a review of the sentence to conform with the decisions in Nairobi High Court Appeal No. 59 of 2019 Ismael Mzee vs Republic, Nairobi High Court Appeal Nos. 154 and 155 of 2019 Braedly Juma & Another vs Republic and Kibera Miscellaneous Application No. 577 Chrispine Kent Otieno vs Republic. The application is premised on the grounds that the court in Nairobi High Court Appeal No. 59 of 2019 substituted the sentence of life imprisonment of the appellant with a sentence of 5 years to conform with the tenets of a fair trial as enshrined in the constitution. The High Court in Criminal Appeal Nos. 154 and 155 of 2019 reduced the sentence of the appellant from 16 years to 10 years imprisonment.

5. Additionally, the court should consider the constitutionality of the mandatory nature of the sentence imposed under Section 4 (a) of the Narcotic Drugs and Psychotropic Substances (Control) Act, 1994, and substitute the sentence to be commensurate with the offence committed. The applicants also urged the court to take into account the time spent in custody by dint of section 333 (2) of the Criminal Procedure Code (Cap 75), Laws of Kenya.

The respondent’s grounds of opposition 6. In response to the applicants’ application the respondent filed grounds of opposition dated 25th February 2022. The grounds raised were that the court lacks jurisdiction as the matter has already been decided by the High Court and the Court of Appeal. Secondly, litigation must come to an end. The applicants have exhausted all legal avenues and the application lacks merit.

The written submissions of the applicants 7. Ms. Akello, learned counsel for the applicants submitted that this court has jurisdiction to hear the application under article 50 (6) of the Constitution of Kenya. She argued that there was new and compelling evidence with regard to the 1st applicant being remorseful and reformed which compels the court to grant the orders sought. It was submitted that the 1st applicant was remorseful for dealing drugs and is seeking a second chance in life. Further, he is a first offender with no previous record of criminal conduct and was only manipulated by others to commit the crime.

8. Learned counsel submitted that the 1st applicant is a father of two children who are now being raised by his aging and ailing mother after his wife left him. In addition, since his incarceration, he has endured a lot of harassment from fellow inmates under his nationality which resulted in high blood pressure ulcers and back pain. Since his incarceration, he has reformed and is ready to be integrated back to society. He has urged the court to consider the time served to be sufficient sentence and invoke the provisions of section 333 (2) of the Criminal Procedure Code (Cap 75) Laws of Kenya.

The written submissions of the respondent 9. Mr. Kiragu, learned prosecution counsel submitted that the High Court and the Court of Appeal did not find any exceptional circumstances to warrant the reduction of the applicants’ sentences. Further, that this court is not bound by decisions of other courts of concurrent jurisdiction and the authorities tendered by the applicants should be taken as only persuasive.

10. Learned prosecution counsel submitted that the court when exercising its discretion in re-sentencing is mandated to call for the record of the trial court to ascertain the legality of the sentence. That both High Court and Court of Appeal confirmed legality of the sentence imposed and therefore this court lacks jurisdiction to hear and determine the sentence as the Court of Appeal has already pronounced itself on the same. Counsel argued that the sentence should not be altered and that the applicants have already exhausted all avenues for redress.

Issues for determination 11. I have considered the application, the response and the submissions by the parties. The issues that arise for determination are:1. Whether this court has jurisdiction to entertain the application2. Whether the applicants should be granted the orders sought.

Analysis and determination 12. It is trite law that the jurisdiction of courts in Kenya is always conferred by the Constitution or other written laws and that a court of law can only exercise jurisdiction as conferred by the constitution or other written law. A court of law cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. The jurisdiction of the High Court includes; unlimited original jurisdiction in criminal and civil matters; jurisdiction to enforce the bill of rights; appellate jurisdiction; interpretative jurisdiction; any other jurisdiction, original or appellate, conferred on it by legislation and supervisory jurisdiction.

13. From the record, the applicants are serving a sentence imposed by the magistrates’ court, upheld by the High Court, and confirmed by the Court of Appeal. It is this sentence that the applicants in respect of which the applicants have sought review. It was submitted by the respondent that the applicants have already exhausted all avenues of appeal. In the case of Raila Odinga & 2 Others –vs- Independent Electoral & Boundaries Commission & 3 Others [2013] eKLR the Court stated that: -A court is functus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus, when its judgment or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling or adjudication must be taken to a higher court if that right is available.”

14. Further, in the case of Joseph Maburu alias Ayub –vs- Republic[2019] eKLR, where the learned Judge stated that: -Sentencing is a judicial exercise. Once a Judge or a judicial officer has pronounced a sentence, he/she becomes functus officio. If the sentence is illegal or inappropriate the only court which can address it is the appellate one. Black’s Law Dictionary Tenth (10th) Edition describes defines sentence as: The Judgement that a court formally pronounces after finding a criminal Defendant guilty; the punishment imposed on a criminal wrongdoer. Remitting a matter to the trial court which had become functus officio after sentencing flies in the face of the doctrine of functus officio. It amounts to asking the trial court to clothe itself with the jurisdiction of an appellate court. This is an illegality.”

15. The rule of thumb is that superior courts cannot sit in review/appeal over decisions of their peers of equal and competent jurisdiction, much less those courts higher than themselves. The sentence which the applicants wish to have reviewed was passed and was already affirmed by the Court of Appeal a court of higher status. I find that the only time that this court can review a sentence imposed upon by a court is when such a sentence was imposed by a subordinate court pursuant to the provisions of section 362 of the Criminal Procedure Code (Cap 75) Laws of Kenya or where this court is approached vide an application for resentencing pursuant to the decision in Francis Karioko Muruatetu & Another vs Republic[2017] eKLR, where the trial court did not properly exercise its discretion in sentencing due to the mandatory nature of the sentence as provided by law.

16. The upshot of the foregoing is that this court is functus officio and hence bereft of jurisdiction to review the sentence.

17. Accordingly, the chamber summons application dated 14th July 2021 is hereby struck out.

RULING SIGNED, DATED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 15TH DAY OF NOVEMBER, 2022. J M BWONWONG’AJUDGEIn the presence of-Mr. Kinyua: Court AssistantMr Kipruto holding brief for Ms. Akelo for the applicantsMs Edna Ntabo for the respondent