[2022] KEHC 1410 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

MISC. CRIMINAL APPLICATION NO.E417 OF 2021

ELISHIPHA MUTHONI.....................................................................................APPLICANT

VERSUS

REPUBLIC........................................................................................................RESPONDENT

R U L I N G

1. The Applicant herein was jointly with another charged, tried and convicted for the offence of Murder contrary to Section 203 as read with Section 204of the Penal Code vide Milimani High Courtin Criminal Case No. 68 of 2004and sentenced to serve 30 years imprisonment.

2. She has approached this court vide the instant application filed in court on 18th November, 2021 wherein she basically seeks review of the thirty (30) years sentence she is currently serving and prays that this court be pleased to consider the time she spent in custody from her arrest to sentence.

3. The application was canvassed through oral submissions. In her submissions, the Applicant submitted that her sentence be reviewed in view of the period served since she has been in prison since 2004. She prayed for this court’s leniency and stated that she has two children whose whereabouts she does not know as she has no family. She also submitted that she has reformed and has acquired new skills from the several courses she has undertaken. She thus urged the court to grant her a second chance.

4. The application is opposed by learned prosecution counsel for the State, Ms. Akunja. She submitted that the Applicant was charged with the offence of murder and sentenced to serve 30 years imprisonment on 13th March, 2012 and has since exhausted all her rights of appeal up to the Court of Appeal. She further submitted that although this court has jurisdiction to entertain the Applicant’s application for resentencing in view of the Supreme Court decision on Muruatetu, the court has a duty to interrogate whether the Applicant deserves a second chance in light of the offence she is charged with. In addition, M/S Akunja has pointed out that the victim of the crime was a child of two (2) years and the evidence from the post mortem report indicated that the circumstances of the deceased child were aggravated as she was suffocated by the Applicant, a result of which she suffered a painful death. To conclude, she submitted that in light of the above, the applicant should serve the remainder of her sentence.

5. In a rejoinder, the applicant prayed that the court to consider the nine years she spent in custody before the conviction and sentence.

6. I have considered the application and the submissions made by both parties in support and in opposition thereof. It is my considered view that the issue to be determined is whether the Applicant’s prayer for review of sentence she is currently serving is merited.

7. I have perused the trial’s court record in Milimani High Court Criminal Case No.68 of 2004 and confirmed that Ombija, J. vide the Judgment delivered on 13th March 2012 did sentence the Applicant herein to thirty (30) years imprisonment for the offence of Murder contrary to Section 203of thePenal Code. As such, it is clear that the Applicant herein is currently serving a sentence meted out by this court or by a Judge of the High Court as he then was. It is this sentence that the Applicant wants reviewed and the time spent in custody considered. It is my view that this court is bereft of such jurisdiction as doing so would be tantamount to sitting as an Appellate court on the Judgment of Ombija, J. who was then a Judge of the High Court, just like myself.

8. It is important to note that, even though this was in 2012, the Court did not sentence the Applicant to death as the law under Section 204 of the Penal Code provided and in mandatory terms.

9. The law abhors that practice of a Judge sitting to review a Judgment or decision of another Judge of concurrent jurisdiction. This is because the rule of the thumb is that courts cannot sit in review/appeal over decisions of their peers of equal and competent jurisdiction much less those courts of higherJurisdiction than theirs.

10. The court which ought to deal with an issue arising out of the decision of this court is the Court of Appeal as it is the one with jurisdiction under Article 164(3)of the Constitution and Section 379(1) of the Criminal Procedure Code. This is in appreciating the provisions of Article 50(2) (q) of the Constitution of Kenya, 2010 which guarantees the right of a person if convicted, to appeal to, or apply for review by, a higher court as prescribed by the law.

11. In the case of Daniel Otieno Oracha -vs- Republic [2019]eKLR, is a case where the Petitioner had applied for review of a sentence imposed by a court of concurrent jurisdiction and while holding that the court did not have jurisdiction to review the said Judgment observed that: -

“14. The law abhors that practice of a Judge sitting to review a Judgment or decision of another Judge of concurrent jurisdiction. Reduction of sentence could only be considered by the Court of Appeal or if this court was sitting on appeal of a Judgment of the subordinate court or if the Petitioner was seeking for resentence after exhausting appeal mechanisms and not otherwise......”

16. The Judgment of Abida Ali-Aroni J made in accordance with the law has not been challenged. This court cannot sit on appeal of its own Judgment or of court of concurrent competent jurisdiction when the Petitioner had an opportunity to ventilate his grievance before the Court of Appeal even if it was to challenge sentence alone.

17. Good governance demands that cases be handled procedurally in the right forum. This is because the rule of the thumb 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 and that matters falling under the exclusive jurisdiction of Supreme Court under Article 163(3) cannot be dealt with by the High Court........”

12. In addition, the jurisdiction of this court is provided for under Article 165of the Constitution, and pursuant to that Article, this court has unlimited original jurisdiction in criminal and civil matters, jurisdiction to enforce bill of rights, appellate jurisdiction, jurisdiction to interpret the Constitution and supervisory jurisdiction over subordinate courts and any other jurisdiction, original or appellate, conferred on it by legislation.

13. Hence, a court of law can only exercise jurisdiction as conferred upon it by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.

14. As I have indicated, the sentence which the Applicant wishes to have reviewed was passed by this court, the High Court. As such the Applicant is basically seeking that this court reviews its own decision regarding the sentence of thirty (30) years imprisonment that was meted against her and further invoke the provisions of Section 333(2) of the Criminal Procedure Code.

15. It is therefore my considered view that this court cannot review the Judgment of Ombija, J. since the court is bereft of jurisdiction to review the said Judgment as in doing so would be tantamount to sitting as an Appellate Court on the Judgment of the Learned Judge and which act the law abhors.

16. Equally important, this court cannot review the sentence that was meted against the Applicant by taking into account the period spent in custody as the same shall be akin to reviewing the decision of a court of concurrent jurisdiction. In such case, it is my considered view, that the Applicant ought to appeal to the Court of Appeal if she feels aggrieved by her sentence.

17. After all, the only time this court can review its own decision is in exercise of the resentencing jurisdiction pursuant to Muruatetu’sdecision.The reasoning in Muruatetu Case does not apply to the Applicant’s case since she was not sentenced pursuant to the mandatory death penalty provisions of the law then, which the Supreme Court declared unconstitutional, but was sentenced to thirty (30) years imprisonment which is much lesser than the death sentence, that applied then. The Court in the Muruateru Case No.2 [2021] gave directions in regard to all offenders who had been subjected to the mandatory death sentence.

18. In the resultant, it is my view that the Applicant’s application lacks merit since this court lacks jurisdiction to revise its own orders regarding sentence subsequently, the undated application by the Applicant ifled on 18th November, 2021 is hereby dismissed.

It is so ordered.

RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 17TH DAY OF MARCH, 2022.

D. O. CHEPKWONY

JUDGE

In the presence of:

Applicant in person – present

Mr. Kiragu counsel for the State

Court Assistant - Jackline