[2022] KEHC 11750 (KLR)

Kaniaru v Republic (Miscellaneous Criminal Application 86 of 2019) [2022] KEHC 11750 (KLR) (Crim) (5 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11750 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Miscellaneous Criminal Application 86 of 2019

GL Nzioka, J

May 5, 2022

Between

Joseph Murimi Kaniaru

Applicant

and

Republic

Respondent

Ruling

1. The Applicant filed the subject chamber summons application herein, on 14th February 2019, seeking for the order of re-sentencing pursuant to the sentence imposed on him vide in High Court Criminal Case Number 31 of 2010. The application is supported by an affidavit dated, 13th February 2019, sworn by the Applicant.

2. He avers that, he was charged with the offence of; murder contrary to section 203 as read together with section 204 of the Penal Code, Cap 63, Laws of Kenya. He pleaded not guilty and the case was fully heard. Upon conclusion thereof, he was found guilty and convicted accordingly. He was sentenced to suffer death.

3. Being aggrieved by the trial court’s decision on both conviction and sentence, he lodged an appeal to the Court of Appeal, Court of Appeal No. 69 of 2017. The appeal was heard and determined vide a judgement delivered on; 5th June 2020, wherein the court dismissed the appeal in its entirety.

4. In the meantime, the Applicant filed the current application, while the appeal was on going. Be that as it were the appeal was disposed of vide filing of submissions. The Applicant filed two different sets of submissions, on 12th October 2021, and then filed by the firm of; Ali & Co. Advocates dated 6th December 2021. The Respondent’s submissions are dated 27th January 2022.

5. The Applicant avers, in a nutshell that, he is remorseful, and has fully reformed and/or been rehabilitated. That, he is a first offender and has been serving sentence since 2010. He therefore seeks that, in the light of the case of; Francis Karioko Muruatetu & another v Republic [2017] eKLR, this court do re-sentence him as prayed.

6. However, the Respondent submitted that, the Supreme Court of Kenya in the Muruatetu case did not render the death sentence inapplicable. That, each case must be assessed on its unique circumstances. Further, any sentence imposed must be commensurate or proportional to the offence. Finally, that no reasons have been advanced to warrant review of the death sentence.

7. I have considered the rival arguments advanced by the respective parties as supported by the submissions and I find that, the first issue to consider is; whether this Court has jurisdiction to review the sentence in question and/or re-sentence the applicant. Apparently, none of the parties invited the Court to determine that issue.

8. Be that as it may, basically, jurisdiction in law, is the authority of a Court to hear and determine a case. In relation to the High Court of Kenya, it is constitutionally based, pursuant to, article 165 of the Constitution of Kenya.

9. As regards High Court Criminal Case No. 31 of 2010, the High Court exercised its jurisdiction under Article 165 (3) which states that, the High Court shall have unlimited original jurisdiction. It therefore follows that, any appeal from that decision can only lie to the Court of Appeal, as an appeal pursuant to the provisions of Article 164 of the Constitution of Kenya. In fact, when the applicant lodged an appeal in the Court of Appeal, he rightfully exercised that right.

10. In the same vein, a party aggrieved by the decision of the Court of Appeal has a right to lodge an appeal to the Supreme Court of Kenya pursuant to the provisions of; Article 163 (4) which provide that, appeals shall lie from the Court of Appeal to the Supreme Court, in any case which the Court or the Court of Appeal certifies to be a matter of public importance.

11. The question that arises herein, is whether this court has jurisdiction to hear and determine this matter, after the Court of Appeal has fully rendered its decision therein. In my considered opinion, the answer is in the negative. As such, on that ground alone, I find that this court has no jurisdiction to entertain this matter and downs its tools of trade as stated in the case of; Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd(1989) eKLR.

12. Be that as it were, even if the application is considered on merit, I find that, this Court is functus officio upon pronouncement of its decision in High Court Criminal Case, No. 31 of 2010. The doctrine of functus officio states that, once a Court has rendered its final decision in a matter, it cannot revisit it. It is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon.

13. Furthermore, on the issue of re-sentencing, I note that, when the Court of Appeal rendered its decision on; 5th June 2020, it was live to the decision in the case of; Francis Karioko Muruatetu & another (supra). In that regard, the Court of Appeal in dealing with the matter herein quote the Supreme Court’s decision in Muruatetu’s caseand stated as follows:“(69)Consequently, we find that section 204 of the Penal Code is inconsistent with the Constitution and invalid to the extent that it provides for the mandatory death sentence for murder. For the avoidance of doubt, this decision does not outlaw the death penalty, which is still applicable as a discretionary maximum punishment”.

14. The Court of Appeal stated that, the offence the appellant committed was heinous and gruesome. That the sentence of death was deserved and that the Court was not inclined to exercise its discretion in favour of the appellant to review the sentence imposed downwards.

15. The upshot of the aforesaid, is that I find no merit in the subject application herein and I dismiss it accordingly.

16. It is so ordered.

Dated, delivered and signed on this 5th day of May, 2022HON. GRACE L. NZIOKAJUDGEIn the presence of;-Applicant present at Kamiti Maximum PrisonMs. Oduor for the RespondentEdwin Ombuna – Court Assistant