[2022] KEHC 2012 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION NO. E 076 OF 2020

IN THE MATTER OF ALLEGED CONTRAVENTION OF ARTICLE 19(2),

20(4)(a), 22(1), 24(1)(d)(e),25(a), 27, 28, 29(f), 48, 50(2) (p) (q), AND 51(1), OF

THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF THE JUDICIARY SENTENCING POLICY GUIDELINES (2015)

AND

IN THE MATTER OF REPUBLIC V TITUS NGAMAU MUSILA (2018) eKLR

AND

IN THE MATTER OF SECTION 4 OF THE CRIMINAL PROCEDURE CODE

AND

IN THE MATTER OF ARTICLE 165(3) OF THE CONSTITUTION OF KENYA 2010

AND

IN THE MATTER OF COURT OF APPEAL CR. APPEAL NO. 115 OF 2018 AT NAIROBI

AND

IN THE MATTER OF HIGH COURT CR. CASE NO. 115 OF 2014 AT NAIROBI

BETWEEN

ERASTUS NGURA ODHIAMBO................................................................................PETITIONER

VERSUS

THE DIRECTOR OF PUBLIC PROSECUTIONS...........................................1ST RESPONDENT

THE ATTORNEY GENERAL.............................................................................2ND RESPONDENT

JUDGMENT

THE PETITION

1. The Petitioner through a Petition undated supported by undated supportive affidavit seek the following reliefs:-

a) That the handing a prisoner such a harsh and unjustified sentence is unconstitutional as causes an unjustified differentiation and is inconsistent with Article 50(2)(p), 29(f) of the Constitution and the sentencing policy guidelines (2015)

b) This Honorable Court may be pleased to order that the Petitioner’s sentence is harsh and excessive thus be reviewed to conform to the Constitution of Kenya and the laid down principles by the Judicial taskforce on sentencing in the sentencing policy guidelines.

c) The Court be pleased to make such other order(s) as it shall deem just.

THE PETITIONER’S CASE

2. The Petitioner in this Petition, Erastus Ngura Odhiambo, was charged and tried in the High Court of Kenya at Milimani in High Court Criminal Case No. 115 of 2014 with one count of murder contrary to Section 203 as read with 204 of the Penal Code and the particulars are as per the charge sheet and the trial Court proceedings.

3. The Petitioner was convicted of the charge of murder after a full trial and sentenced to serve a 20 years’ custodial sentence.

4. The Petitioner appeal was dismissed in April 2020. The Petitioner has now petitioned the High Court on a constitutional platform alleging that his rights to a fair trial were infringed hence an unconstitutional sentence that was not in the living spirit of Articles 19(2), 20 (1)(2)(3)(4), 21, 24(1)(a)(b)(c)(d)(e), 25, 28, 29, 50(2)(p), 51(1) and all other relevant laws including the Sentencing Policy Guidelines 2015.

1ST RESPONDENT’S RESPONSE

5. The 1st Respondent is opposed to the Petitioner’s Petition and filed grounds of opposition dated 13th May 2021 setting out 5 grounds of opposition as follows:-

a) That the Petition raises no substantive constitutional issues for determination.

b) That the Petitioner has failed to demonstrate the manner in which his rights have been infringed by the 1st Respondent.

c) That the Petitioner was accorded a fair trial in compliance with Article 50 of the constitution by both the trial Court and the Appellate Court.

d) That the orders sought are therefore not tenable against the 1st Respondent as the Petitioner does not show how the 1st Respondent has a duty in the matter raised.

e) That the Petition is without merit, an abuse of Court process and should therefore be dismissed.

2ND RESPONDENT’S RESPONSE

6. The 2nd Respondent is also opposed to the Petitioner’s Petition and relies on the grounds of opposition dated 21st July 2021 setting out 6 grounds of opposition being thus:-

a) That the Petitioner has not demonstrated before this Honourable Court how the Respondents have violated his Constitutional Rights.

b) That it is well settled law that the Petitioner has to identify the specific rights that have been infringed as was decided in the case of Annarita Karimi Njeru vs. R (1976-1980) KLR 1272 that a Petitioner ought to identify and specify how his rights have been infringed.

c) That both the Petition and the Application have not raised any Constitutional issues to invoke the jurisdiction of this Honourable Court.

d) That it is trite that a Court of law can only exercise jurisdiction as conferred upon it by the Constitution or other written law and that it cannot arrogate itself jurisdiction exceeding that which is conferred upon it by law.

e) That both the petition and the Application is malicious as its intention is to cloth this Honourable Court with the jurisdiction to re-hear and re-sentence the Petitioner’s sentence.

f) That this Honourable Court lacks the jurisdiction for review as the said jurisdiction lies with the trial Court.

ANALYSIS AND DETERMINATION

7. Upon consideration of the Petition and responses as well parties rival submissions, I find that the following issues arise for consideration:-

a) Whether this Court has jurisdiction to hear and determine this matter.

b) Whether the Petition offends the principle of drafting constitutional Petitions.

c) Whether the Respondents have infringed on the Petitioner’s right to fair trial.

d) Whether the Petitioners right has been violated by the Respondents.

A.WHETHERTHIS COURT HAS JURISDICTION TO HEAR AND DETERMINE THIS MATTER.

8. The Petitioner contend that the High Court has jurisdiction on matters under Article 22(1) as supported by Article 23(1),and 165 (3) (a)(b)subject toClause 5(b) of the Constitution. It is further urged by the Petitioner that the Court has jurisdiction under Article 47 of the Constitution as read with Section 9(4) and Section 10 (1) of the Fair Administrative Act, 2015. In addition it is urged jurisdiction is given life by Article 50(1) of the Constitution. It is also averred that this matter is properly within the mandate of this Court in its capacity as the Court of original jurisdiction.

9. It is further Petitioner’s position that his rights under Article 50(2)(p) were violated during trial and sentencing and as such he urges he believes he is in the right place in the right time as provided in the Constitution.

10. The Respondents contention is that the Petition is an appeal couched as a Constitutional Petition and raises no constitutional issues. It is urged the Petition is frivolous, vexatious and an abuse of the Court process. It is further urged sentencing of a convict is solely the role of a presiding officer and the Respondents did not play any specific role in sentencing of the convicts.

11. It is trite that a Court of law can only exercise jurisdiction conferred upon it by the Constitution or other written law, it cannot arrogate itself jurisdiction exceeding that which is conferred. This Petition is brought before a Constitutional and Human Rights Division Court and not before a Criminal Division which has jurisdiction to deal with criminal matters. This Court cannot purport to have powers to exercise jurisdiction pertaining to criminal matters being a constitutional and Human Rights Division of the High Court and proceed to review criminal sentences issued by Judges or judicial officers executing criminal jurisdiction. It would in doing so be acting without jurisdiction.

12. The sentencing Policy Guidelines under paragraph 7:17 applied by Courts handling criminal cases clearly provides that where the law provides a mandatory minimum sentences, then the court is bound by those provisions and must not impose a sentence lower than what is prescribed. The Petitioner was after a full trial was convicted and sentenced to 20 years custodial sentence. The Petitioner has then rushed before this Court to urge the Court to enter into the realm of a criminal trial while in essence the Court is not supposed to do so, being a Constitutional and Human Rights Division of the High Court.

13. In view of the aforesaid, I find and hold that the Constitutional and Human Rights Division does not have the jurisdiction to hear and determine this Petition, seeking review of sentence which is a mandate that lies with Criminal Division of the High Court, being the trial Court. In addition it is clear that the Petitioner exercised his constitutional rights to Appeal to Court of Appeal in which his appeal was dismissed and thus exhausting his avenue for appeal or review. I find that Constitutional and Human Rights Division of the High Court lacks jurisdiction to entertain this Petition.

B. WHETHER THE PETITION OFFENDS THE PRINCIPLE OF DRAFTING CONSTITUTIONAL PETITIONS.

14. In order to properly considered whether the Petition offends the principle of drafting constitutional Petition, this Court is called upon to consider the principle of law governing drafting of constitutional Petitions. The principles of drafting a constitutional Petition were well outlined in the case of Anarita Karimi Njeru v. Republic (1979) KLR where the Court of Appeal stated that,

“we would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, provisions said to be infringed, and the manner in which they are alleged to be infringed.”

15. It is clear from the aforesaid case that it is a principle of law that anyone who wishes the Court to grant a relief for violation of rights or fundamental freedom, to plead in a precise manner the Constitutional provisions, alleged to have been violated or infringed, the manner of infringement and the jurisdictional basis for it.

16. The Court of Appeal in Mumo Matemo vs. Trusted Society of Human Rights Alliance (2014) eKLR, on the applicable principle of law stated thus:-

“…the principle in Anarita Karimi Njeru (supra) underscores the importance of defining the dispute to be decided by the Court… Procedure is also handmaiden of just determination of cases. Cases cannot be dealt with justly unless the parties and the Court know the issues in controversy. Pleadings assist in that regard and are a tenet of substantive justice, as they give fair notice to the other party. The Principle in Anarita Karimi Njeru (supra) that established the rule that requires reasonable precision in framing of issues in constitutional Petitions is an extension of this principle.”

17. In order to find out whether the Petition offends the aforesaid principle of drafting a constitutional Petition, the Court has to peruse the Petition as drawn and field herein. Upon consideration of the Petitioner’s Petition it is evident that the Petitioner has not provided the particulars of the alleged violation or infringement against any of the Respondents herein nor has the Petitioner indicated the manner in which the 1st and 2nd Respondents purportedly infringed his rights.

18. The procedure set out in the Anarita Karimi Njeru vs. Republic case (supra) was for the purposes of furtherance of justice. It is therefore a must for every Petition to adhere to the set out procedure without undue departure from its tenets. I am in this regard guided by a High Court of Kenya decision in Meru inEast Africa Pentecostal Churches Registered Trustees & 1754 others vs. Samwel Muguna Henry & 4 others (2015) eKLRwhere the Court stated that:-

“Procedure is also a handmaiden of just determination of cases. Cases cannot be dealt with justly unless the parties and the Court know the issues in controversy.”

19. In the instant Petition no doubt, the Petitioner contrary to the principles of filing Constitutional Petitions has failed and neglected to clearly enunciate how the 1st and 2nd Respondents have infringed on his Constitutional Rights.

20. Further the principles of drafting of constitutional Petitions espoused in the Anarita Karimi Njeru vs. Republic Case (Supra) are in tandem with the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 which were already in place at the time of filing the Petition herein.

21. In view of the aforesaid I find that the Petition against the 1st and 2nd Respondents is defective as it does not in any way outline the particulars of the alleged complaint against the Respondents and the manner in which the Respondents have violated or infringed on the rights of the Petitioner.

C. WHETHER THE RESPONDENTS HAVE INFRINGED ON THE PETITIONER’S RIGHT TO FAIR TRIAL.

22. It is 1st Respondent averment that, the Director of Public Prosecutions, is mandated under Article 157 of the ConstitutionandSection 6 of the Office of the Director of Public Prosecutions Act, 2013 to institute and undertake criminal proceedings against any person before any Court of Law.

23. In accordance with Article 157 (10) of the Constitution,the 1st Respondent shall not require the consent of any person or authority for commencement of criminal proceedings and in the exercise of his powers or functions, shall not be under the direction or control of any person or authority.

24. In view of the clear Constitutional provisions, the 1st Respondent’s mandate is constrained to Article 157 of the Constitution and ODPP Act; all of which are not relevant to this Petition as the issues being raised by the Petitioner are ultra vires the Respondent’s mandate. The Respondent neither plays a role with regards to sentencing nor post-conviction issues.

25. In the instant Petition the Petitioner has failed to specifically demonstrate how each of the following rights under Articles 19(2), 20(4)(a), 22(1), 24(1) (d)(e), 25(a), 27, 28, 29, (f), 48, 50(2) (p) (q), & 51(1) of the Constitutionhave been violated by the 1st Respondent.

26. As regards claim against the 2nd Respondent and upon perusal of the Petition, it is noted the Petitioner claims that his rights were violated but he does not set out how the 2nd Respondent violated those rights nor has the Petitioner demonstrated how his rights to human dignity were violated by the Respondents to a reasonable degree of precision.

27. The Petitioner further has not demonstrated and proved how his rights under Article 50 of the Constitution has been violated by the Respondents. It is not in dispute that the Petitioner was convicted of a charge of murder after full trial and sentenced to serve 20 years’ custodial sentence. He thereafter appealed against the conviction and sentencing, and his appeal was accordingly dismissed in April 2020. I find the Petitioner was accorded a fair trial in accordance with Article 50 of the Constitution by both the Trial Court and Appellate Court. There is no demonstration by the Petitioner that any of the Court violated or infringed on clear provisions of Article 50 of the Constitution. The Petition is speculative and without any basis.

28. The upshot is that the Petition is without merit and the same is accordingly dismissed. Each Party to bear its own Costs.

DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 3RD DAY OF MARCH, 2022.

........................

J. A. MAKAU

JUDGE OF THE HIGH COURT OF KENYA