[2023] KEHC 26336 (KLR)

Kinoti & 2 others v Republic (Miscellaneous Criminal Application E030 of 2022) [2023] KEHC 26336 (KLR) (8 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26336 (KLR)

Republic of Kenya

In the High Court at Kajiado

Miscellaneous Criminal Application E030 of 2022

DR Kavedza, J

December 8, 2023

Between

Peter Kinoti

1st Applicant

Stephen Kathurima Mugambi

2nd Applicant

Erick Munene

3rd Applicant

and

Republic

Respondent

Ruling

1. The applicants herein was charged and after a full trial convicted for the offence of being in possession of forged bank notes contrary to section 359 of the Penal Code, Cap 63 Laws of Kenya at Loitoktok Law Court. They were each convicted to serve three and half (3 ½) years imprisonment. Being aggrieved, they filed an appeal challenging their conviction and sentence at Kajiado High Court in Criminal Appeal No. E043 of 2021. The High Court upheld the conviction and sentence meted out by the trial court.

2. They have now approached this court vide the instant notice of motion dated 28th September 2022 seeking a revision of sentence. In support of the application, the applicants in their respective affidavits contended that since their incarceration, they have since reformed. They are remorseful and urged the court to consider a non-custodial sentence.

3. I have considered the application herein and the affidavits in support. It is my considered view that the issue which I need to decide on is whether the same is merited.

4. As I have earlier observed, the application seeks review of the sentence currently being served by the applicants. I have called and perused the court records in Kajiado High Court Criminal Appeal no. E043 of 2021 and confirmed that Mutuku J vide the judgement delivered on 17th May 2022 did uphold the conviction and sentence of trial court. As such, it is clear that the applicants herein are currently serving a sentence meted out by this court. It is this sentence that the applicant wants revised and be substituted with a non-custodial sentence.

5. To begin with, the jurisdiction of this court is provided for under Article 165 of the and includes unlimited original jurisdiction in criminal and civil matters; jurisdiction to enforce bill of rights; appellate jurisdiction; interpretive jurisdiction; any other jurisdiction, original or appellate conferred on it by any legislation; and supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court. The said Article does not clothe this court with a jurisdiction to review a decision of a court of concurrent jurisdiction. Further, the revisionary jurisdiction of this court under Sections 362 and 364 of the Criminal Procedure Code is only limited to proceedings from subordinate courts.

6. The sentence which the Applicants now seek to review was imposed by a subordinate court and affirmed by a court that has concurrent jurisdiction with this court. That therefore means that this court cannot review the said sentence as doing so would amount to sitting on appeal against the decision of a court of concurrent jurisdiction which is unacceptable under the law. In my view, this court became functus officio the moment Hon Lady Justice S. N. Mutuku pronounced herself on the sentence and the only recourse that the applicants is left with is to move the Court of Appeal which is clothed with the jurisdiction to hear appeals from the High Court under Article 164(3) of the Constitution and Section 379(1) of the Criminal Procedure Code.

7. I find persuasion in the case of Joseph Maburu alias Ayub vs Republic [2019] eKLR where the court 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.”

8. In Samuel Kamau Macharia & Another –vs- KCB & 2 Others App. No. 2/2011, the Supreme Court of Kenya made it clear that a Court of law can only exercise jurisdiction as conferred by the constitution or other written law and cannot arrogate itself jurisdiction exceeding that which is conferred upon it by law, and that a court cannot expand its jurisdiction through judicial craft. It is trite law that a court of law ought to down its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. (See owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR).

9. In the aforesaid premises, the application herein has no merits and it is hereby dismissed.

It is so ordered.

RULING DATED AND DELIVERED VIRTUALLY THIS 8TH DAY OF DECEMBER 2023________________________D. KAVEDZAJUDGEIn the presence of:Nyaroita for the StateAppellants presentMateli C/A