[2022] KEHC 13938 (KLR)

Kasiva v Republic (Miscellaneous Criminal Application E035 of 2021) [2022] KEHC 13938 (KLR) (6 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13938 (KLR)

Republic of Kenya

In the High Court at Machakos

Miscellaneous Criminal Application E035 of 2021

GV Odunga, J

October 6, 2022

Between

Jackson Wambua Kasiva

Prosecution

and

Republic

Accused

Ruling

1. The Applicant herein, Jackson Wambua Kasiva, was charged before the Senior Resident Magistrate, Kithimani in criminal case no. 10 of 2010 with the offence of defilement contrary to section 8(1) and (2) of the Sexual Offences Act. He also faced the alternative charge of indecent act on a child contrary to section 11(1) of the same Act. At the conclusion of the trial, the appellant was convicted in the main count and sentenced to serve a life sentence. Aggrieved buy the said decision, the applicant appealed the decision to this Court in Criminal Appeal No. 206 of2011. However, this Court dismissed the said appeal. Undeterred, the applicant moved to the Court of Appeal in Criminal Appeal No. 15 of 2017 but the appeal suffered the same fate.

2. Based on the decision of the Supreme Court in Francis Karioko Muruatetu & Another vs. Republic, Petition No. 15 of 2015 (hereinafter referred to as “Muruatetu”) the applicant moved this Court in Miscellaneous Criminal Application No. 150 of 2019 in which he sought an order for resentencing. Kemei, J who heard the application dismissed the same on 29th January, 2020 based on the directions given by the Supreme Court post Muruatetu in which the Supreme Court clarified that Muruatetu only applied to those who were charged with the offence of murder. The Court however left the window open for those who believed that the principles enunciate in Muruatetu to take up the issue before the respective courts for determination with the hope that the matters would find their way to the Supreme Court for determination.

3. Based on the said guidelines, this Court in Petition No. 17 of 2021 - Philip Mueke Maingi & Others vs. Director of Public Prosecutions & Anotherheld that whereas Muruatetu applied to murder, the principles therein apply to offences for which mandatory sentences were similarly prescribed.

4. The applicant believes that he ought to benefit from that decision.

5. In my view, had the applicant not applied for resentencing, this Court would have had no difficulty in entertaining his case since the issue of the constitutionality of his sentence was not dealt with by the previous courts. My position is in sync with the views expressed in Protus Buliba Shikuku vs. Attorney General [2012] eKLR where the High Court, while addressing the question of jurisdiction to hear a matter which the Court of Appeal had determined where there was an allegation that of violation of fundamental rights held that:-“(9)In a unique way the superior court is being asked to interfere with a decision of the court of appeal. We are in agreement that Article 23 of the current 2010 Constitution as read with Article 165(1) 3(a) (b) (d) (i) (ii) have donated the same mandate without exception to this superior court and for this reason of donation of jurisdiction without exception we feel confident that we are properly seized of the petitioner's complaints which arise from an alleged act of omission or commission by the courts of this jurisdiction as laid out in the petition.(10)That the petitioner’s complaints in the petition having been anchored on an alleged breach of a fundamental right, the legal prescriptions assessed under the Article 2(5) of the 2010 Constitution as emanating from International Law Best Practices are in agreement with the current Municipal prescriptions as assessed that there are key principles which should be taken into consideration when dealing with complaints such as those laid by the petitioner namely:-(a)Equality before the law courts, tribunals and equal protection of the law is a fundamental right.(b)A right to have one’s cause heard irrespective of its ultimate success is of paramount importance.(c)There is entitlement to a right to an effective remedy meaning one which is capable of enforcement with a leaning towards conferring of a right.(d)The sole purpose of enforcement of human rights is for purposes of preservation of the human dignity and enable the offending human being realize the full potential of himself/herself as a human being.(e)Adjudication of the rights are between the individual as the governed and the state as the governor and are not adjudicatable as between individuals under private law.(f)As found by judges in the persuasive authority of Reyes Versus the Queen (supra) the call both at the international level as well as the Municipal level is for the courts to interpret the said bill of Rights broadly and liberally in order to give effect to the enforcement of the right with an interpretation which favours the enjoyment of that is alleged to have been breached or has been threatened to be breached.(g)The interpretation should also bear in mind the need to observe respect and protect the dignity of the individual.(h)There is no prescribed period of limitation inbuilt either under the defunct section 84(1) Provisions or current Article 23 of the 2010 Constitution as to when one loses the right to pursue infringement to a fundamental right.(i)Even where no specific remedies were prescribed as being inbuilt in the defunct Section 84(1) Provisions, the courts had jurisdiction to grant appropriate remedies known in law. Some of which have now been entrenched in Article 23 with a rider that they are not exhaustive.”

6. That decision seems to be contrary to the decision in Kenya Hotel Properties Limited vs. Attorney General & 5 Others (2020) eKLR where the Court of Appeal expressed itself as hereunder:“Despite several declarations of finality made by various Judges of the High Court and benches of this Court, the matter appears to have an uncanny capacity for reincarnation. Its latest rising is the most baffling of all because the petition filed before the High Court sought strange prayers in that the court there was being asked to annul, strike out, reverse or rescind a judgment of this Court, its elder sibling. In a system of law that is hierarchical in order, such as ours is, it seems to us that such a thing is quite plainly unheard of and for reasons far greater than sibling rivalry. The Constitution itself clearly delineates and demarcates what the High Court can and cannot do. One of things it cannot do by virtue of Article 165(6) is supervise superior courts. Moreover, under Article 164(3) of the Constitution, this Court has jurisdiction to hear and determine appeals from the High Court. Its decisions are binding on the High Court and all courts equal and inferior to it. It is therefore quite unthinkable that the High Court could make the orders the appellant sought as against a decision of this Court to quash or annul them, or that it could purport to direct this Court to re-open and re-hear a concluded appeal. We consider this to be a matter of first principles so that the appellant’s submission that the issue pits supremacy of the courts against citizens’ enjoyment of fundamental rights is really misconceived because rights can only be adjudicated upon by properly authorized courts. Any declaration by a court that has no jurisdiction is itself a nullity and amounts to nothing. It matters not how strongly a court feels about a matter, or how impassioned it may feel or how motivated it may be to correct a perceived wrong: without jurisdiction it would be embarking on a hopeless adventure to nowhere. We think the Supreme Court in the S.K Macharia case captured the essence of the need for courts to respect and stay within jurisdictional tethers and constraints…”

7. The Supreme Court however, seems to have taken another view of the matter in Jasbir Singh Rai & 3 Others vs. Tarlochan Singh Rai Estate & 4 Others [2013] eKLR where Mutunga, CJ expressed himself as hereunder;“[111]…The Kenyan Constitution has given the High Court the exclusive jurisdiction to deal with matters of violations of fundamental rights (Article 23 as read with Article 165 of the Constitution). The High Court, on this point, has correctly pronounced itself in a judgment by Justices Nambuye and Aroni, in Protus Buliba Shikuku v R, Constitutional Reference No. 3 of 2011, [2012] eKLR.[112]The Shikuku Case fell within the criminal justice system; it involved a claim of violation of the petitioner’s fundamental rights by the Court of Appeal, in a final appeal. The trial Court failed to impose against the petitioner the least sentence available in law, at the time of sentencing. On the issue of jurisdiction, the learned judges, relying on Articles 20, 22, 23 and 165 of the Constitution, rightly held that the High Court had jurisdiction to redress a violation that arose from the operation of law through the system of courts, even if the case had gone through the appellate level. In so holding, the High Court stated with approval the dicta of Shield J, interpreting the provisions of the 1963 Constitution in Marete v. Attorney General [1987] KLR 690:“The contravention by the State of any of the protective provisions of the Constitution is prohibited and the High Court is empowered to award redress to any person who has suffered such a contravention.”[113]Thus, in answer to Mr. Nowrojee’s first two questions posed to the Supreme Court, my answer is this: There is no injustice that the Constitution of Kenya is powerless to redress.”

8. In this case however, what the applicant is seeking is resentencing. It was the same relief that was sought before Kemei, J. While the applicant may have a case, his case, however, plausible, cannot be dealt with by this Court. His remedy lies in challenging the decision made on resentencing before the Court of Appeal.

9. In the premises, I hold that this court is functus officio and the applicant’s grievances can only be dealt with on appeal to a higher court.

10. In the premises, this application is incompetently before this court and is hereby struck out.

11. It is so ordered.

G V ODUNGAJUDGERULING READ, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 6TH DAY OF OCTOBER, 2022. M W MUIGAIJUDGEDelivered the presence of: