[2023] KEHC 24871 (KLR)
The High Court lacks jurisdiction to review or revise a sentence that has already been revised by another judge of concurrent jurisdiction. Entertaining such an application would amount to sitting as an appellate court over a decision of a peer court, which is impermissible under Kenyan law. The applicant's remedy,...
Source-derived case information.
- Citation
- [2023] KEHC 24871 (KLR)
- Parties
- Applicant: Con Moses Mucheru Maina; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kibera
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal E65 of 2023
- Procedural Posture
- Criminal Appeal / Ruling on Application for Revision of Sentence
- Outcome
- application dismissed
- Judges
- DR Kavedza
- Legal Topics
- Revision of Sentence, Jurisdiction of High Court, Robbery With Violence, Actual Bodily Harm
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Con Moses Mucheru Maina
Applicant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Does the High Court have jurisdiction to review a sentence already revised by a court of concurrent jurisdiction?
- 2 Is the applicant entitled to further revision of his sentence after a previous revision by another High Court judge?
- 3 Does filing the present application constitute an abuse of court process?
Ratio Decidendi
The High Court lacks jurisdiction to review or revise a sentence that has already been revised by another judge of concurrent jurisdiction. Entertaining such an application would amount to sitting as an appellate court over a decision of a peer court, which is impermissible under Kenyan law. The applicant's remedy, if any, lies elsewhere and not before this court. The application is therefore dismissed for want of jurisdiction and as an abuse of the court process.
Court Disposition
application dismissed
Orders
- The application is dismissed.
- The applicant shall not file any similar application without leave of court.
Full Case Text
Judgment text and source record
22 paragraphs
Maina v Republic (Criminal Appeal E65 of 2023) [2023] KEHC 24871 (KLR) (7 November 2023) (Ruling)
Neutral citation: [2023] KEHC 24871 (KLR)
Republic of Kenya
In the High Court at Kibera
Criminal Appeal E65 of 2023
DR Kavedza, J
November 7, 2023
Between
Con Moses Mucheru Maina
Applicant
and
Republic
Respondent
(Criminal Appeal No. 68 of 2018 wherein the sentence was revised by Hon. D.O. Ogembo on 10th July 2020 Criminal Appeal 68 of 2018 )
Ruling
1. Before me is an application by the applicant, Con Moses Mucheru Maina, seeking revision of the sentence which he is currently serving.
2. The applicant was charged with two counts, to wit, robbery with violence contrary to section 295 as read with section 296 of the Penal Code, and causing actual bodily harm contrary to section 251 of the Penal Code. He was subsequently sentenced to serve 15 years imprisonment on count I and 1 year imprisonment for count II.
3. Aggrieved by the sentence, the applicant filed Criminal Appeal No. 68 of 2018 wherein the sentence was revised by Hon. D.O. Ogembo on 10th July 2020 to take into account the time he spent in custody.
4. What the applicant is seeking therefore, is for this court to review the decision of a court of concurrent jurisdiction. This court is bereft of any such jurisdiction to review the said decision, as doing so, would be tantamount to sitting as an appellate court on the decision of a court of concurrent jurisdiction (Ogembo J). As a general rule, superior courts cannot sit in review/appeal over decisions of their peers of equal and competent jurisdiction. The applicant’s remedy, if at all, lies elsewhere but certainly not in this court.
5. In view of the foregoing, this court does not have jurisdiction to entertain the instant application. See the Owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR, where it was held that jurisdiction is everything. Without it, a court has no power to make one more step, and must down its tools.
6. The application not only lacks merit, but it is an abuse of the court process. The Application is therefore dismissed with an order that the Applicant shall not file any similar application without leave of court.
RULING DATED AND DELIVERED VIRTUALLY THIS 7TH DAY OF NOVEMBER 2023. ............................................D. KAVEDZAJUDGEIn the presence of:Ms Akunja for the State.Applicant absent (VTC).Joy C/A.