[2023] KEHC 25902 (KLR)

Kirimi v Republic (Criminal Petition E005 of 2023) [2023] KEHC 25902 (KLR) (30 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25902 (KLR)

Republic of Kenya

In the High Court at Nanyuki

Criminal Petition E005 of 2023

AK Ndung'u, J

November 30, 2023

Between

Kenneth Kirimi

Petitioner

and

Republic

Respondent

Ruling

1. The Petitioner herein, Kenneth Kirimi was convicted of robbery with violence contrary to section 296(2) of the Penal Code and sentenced to death vide Nanyuki CM Criminal Case no 957 of 2014. He states that he appealed to this court vide Criminal Appeal no 60 of 2015 against both conviction and sentence. His appeal was dismissed. He further stated that he appealed to the Court of Appeal vide Nyeri Criminal Appeal no 104 of 2016 but he withdrew the appeal before the Court of Appeal.

2. Consequently, he lodged a Criminal Petition no 366 of 2020 at Nyeri High Court which was referred to the lower court for re-sentencing and the magistrate substituted the death sentence with 15 years sentence. That he also filed a Miscellaneous Application E012 of 2021 in Nyeri High Court pursuant to section 333(2) of the Criminal Procedure Code however the High Court Judge declined to grant the orders and held that the lower court had no jurisdiction to conduct a resentencing. The Judge proceeded to set aside the 15 years sentence imposed upon resentencing and reinstated the life sentence that the Applicant was initially serving.

3. In his undated chamber summons and the supporting affidavit, it is stated that the petition is filed pursuant to the directions given by the Supreme Court on 06/07/2021 in Francis Karioko Muruatetu & another v Republic (2017)eKLR and seeks for sentence hearing and interpretation of mandatory application of the death sentence for robbery with violence cases. The petition is brought under Article 22(1), 23(1), 25(c), 27, 28, 50(2) (p)(q), 159(2) 160(1) and 165 of the Constitution, Clause 7(1) of the Transitional and Consequential Provisions and sections 216, 329 and 333(2) of the Criminal Procedure Code.

4. It is deponed that the Applicant was sentenced to a mandatory sentence without consideration to his mitigation and the unique facts and circumstances of the case. He stated that the Supreme Court order of 06/07/2021 left it open for the High Court to hear any petition that maybe brought challenging mandatory minimum sentences and did not hold that the High Court should not apply the previous reasoning in Muruatetu 1.

5. His prayers in the application is for review of the sentence and reinstatement of 15 years sentence which was imposed by the lower court upon the application for resentencing and that the period he spent in remand be computed into 15 years sentence.

6. The application is opposed. Counsel for the Respondent advanced oral arguments in which she urged that this court is bereft of jurisdiction since the High Court in Criminal Appeal no 60 and in Misc. Application E012 of 2021 which are courts of concurrent jurisdiction with this court pronounced themselves on the sentence and affirmed the petitioner’s sentence. Further, this is a third application that the Petitioner has filed in the High Court and therefore he is forum shopping. It is sought that the application to be dismissed.

7. In response, the Applicant urged the court to consider the period he spent on remand and reduce the sentence to 15 years.

8. What I have gathered from the petition is that the Applicant’s appeal to the High Court was dismissed and he filed a petition seeking for resentence vide Criminal Petition 366 of 2020 in the High Court in Nyeri. He stated that the High Court referred the matter to the trial court for resentencing. The lower court substituted the death sentence with a 15 years sentence. Consequently, He filed a Misc. Application to the High Court in Nyeri vide Misc. Application E012 of 2021 pursuant to section 333(2) of the Criminal Procedure Code seeking that the period he had spent in remand to be considered. However, the High Court (Muchemi J) struck out the application and set aside the 15 years imprisonment that was imposed by the principal magistrate. In doing so, the Learned Judge considered the principles enunciated in the Muruatetu case and stated that the principal magistrate had no jurisdiction to review the sentence that was confirmed by the Court of Appeal.

9. In the said ruling, which ruling I had the advantage to read, though not attached to the Petitioner’s petition, the learned Judge noted that the Petitioner had appealed to the Court of Appeal vide Criminal Appeal no 106 of 2016 which was dismissed. In his application, he informed this court that he withdrew his appeal before the Court of Appeal.

10. The Petitioner seeks this court to reverse the order of Muchemi J and reinstate the 15 years imprisonment. In essence, he is asking this court to review the decision of a court of concurrent jurisdiction.

11. The jurisdiction of the High court is provided for under Article 165(3) of the Constitution and includes unlimited original jurisdiction in criminal and civil matters; jurisdiction to enforce bill of rights; appellate jurisdiction; interpretative jurisdiction; and any other jurisdiction, original or appellate, conferred on it by legislation. The High court further has supervisory jurisdiction over subordinate courts donated by Article 165(6) of the Constitution. This jurisdiction is expounded under sections 362 and 364 of the Criminal Procedure Code.

12. There is no law which bestows this court with jurisdiction to sit on appeal or review a decision by a court of concurrent jurisdiction and/or its own decision other than in the ordinary powers of review applicable in civil cases. No judge of the High Court can superintend over fellow judges of that court or of the superior courts of equal status. The Court of Appeal in Peter Ng’ang’a Muiruri v Credit Bank Ltd & 2 Others Civil Appeal no 203 of 2006 held that;“It would be a usurpation of power to push forward such an approach, and whatever decision emanates from a court regarding itself as a constitutional court, with powers of review over decisions of concurrent or superior jurisdiction, such decision is at best a nullity.”

13. The Applicant herein having been dissatisfied with the decision of Hon. F. Muchemi, J., ought to have appealed to the Court of Appeal. Filing the current application clothed as a constitutional petition is an impropriety as was held in Civicon Limited v Kenya Revenue Authority & another [2014] eKLR, where the learned judge expressed himself quite strongly on the impropriety of parties attempting to reopen and relitigate decided issues in original form by clothing them as a constitutional petition by stating that;“I agree with the judicial policy that is variously set out by the authorities relied by the 2nd respondent-Peter Ng’ang’a Muiruri v Credit Bank Ltd & Anor, Court of Appeal Civil Appeal no 203 of 2006 and Ventaglio International SA and Anor v The Registrar of Companies and Anor, Nairobi HC Constitutional Petition no 410 of 2012 (per Lenaola, J) that the High Court’s Constitutional Division, indeed any other Division, cannot supervise any other superior court of concurrent jurisdiction or superior jurisdiction. The supervisory jurisdiction is over subordinate courts under Article 165(6) of the Constitution. I also consider that it is an abuse of the court process for a litigant to seek to obtain through a constitutional petition or indeed any to other court process before the same court of concurrent jurisdiction a different decision from one already rendered by the court in other proceedings over the same matter. The aggrieved party must be content with the devices of appeal or review of the decision already delivered by the court but cannot be permitted to re-agitate the matter through a constitutional petition or other originating proceedings. See Beta Healthcare International Ltd v Commissioner of Customs, and 2 Others. Nairobi HC Petition no 125 of 2010 (per Majanja, J.)”

14. It therefore follows that this petition has no place in law. The same lacks Merit and is dismissed.

DATED SIGNED AND DELIVERED VIRTUALLY THIS 30TH DAY OF NOVEMBER 2023A.K. NDUNG’UJUDGE