[2023] KEHC 25478 (KLR)

Mibei v Republic (Criminal Petition E001 of 2022) [2023] KEHC 25478 (KLR) (16 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25478 (KLR)

Republic of Kenya

In the High Court at Bomet

Criminal Petition E001 of 2022

RL Korir, J

November 16, 2023

Between

Weldon Cheruiyot Mibei

Applicant

and

Republic

Respondent

Ruling

1. The Petitioner was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The Particulars of the offence were that on 18th June 2017 at Makimeny Location, Chepalungu sub-county within Bomet County, the Applicant murdered Winnie Chepkurui Ng’eno.

2. This court conducted a trial and found the Petitioner guilty of the lesser offence of manslaughter and convicted him on 30th June 2022. On 3rd August 2020, Ongeri J sentenced the Applicant to serve 20 years imprisonment.

3. The Petitioner had previously filed two Miscellaneous Criminal Applications in this court being Miscellaneous Criminal Application Number E002 of 2021 and Miscellaneous Criminal Application Number E014 of 2021. As in the present Petition, the Petitioner in both Applications prayed for resentencing. Therefore, inclusive of the present Petition, there were three Applications on record by the Petitioner and they all sought prayers for resentencing.

4. On 4th May 2023, pursuant to the Petitioner’s prayers in court, Miscellaneous Criminal Application Number E002 of 2021 and Miscellaneous Criminal Application E014 of 2021 were withdrawn and the court further directed that the present Petition be heard.

5. Through a Petition filed on 26th November 2022, the Petitioner applied for resentencing. He stated that he was arrested and charged when he was aged 17 years and that he had reformed. He prayed for his sentence to be reduced and that the court considers the time or period he had spent in remand.

6. He filed his submissions on sentence reduction on 1st December 2022 and submitted that he was a first offender and was remorseful. He further submitted that he had attended psychological counselling sessions while in prison and had made peace with God. The Applicant attached various certificates indicating completion of various courses and I have considered.

7. I have gone through the court record and I have noted that this was a murder case which was heard by my brother Muya J while the judgement was delivered by my sister Ongeri J As earlier stated, Ongeri J found the Petitioner guilty of the lesser offence of manslaughter and convicted him and thereafter sentenced him.

8. I must point that in seeking resentencing, the Petitioner laboured under the holding in Francis Karioko Muruatetu & another v Republic (2017) eKLR , also known as Muruatetu 1, where the Supreme Court held:-“The mandatory nature of the death sentence as provided for under Section 204 of the Penal Code is hereby declared unconstitutional……”

9. After declaring the death sentence for the offence of murder unconstitutional, the Supreme court in Francis Karioko Muruatetu (supra) (Muruatetu 1) directed that:-“This matter is hereby remitted to the High Court for re- hearing on sentence only, on a priority basis, and in conformity with this judgment.”

10. The import of the decision in Muruatetu 1 was that the mandatory death sentence for the offence of murder was declared unconstitutional and an Accused who had been convicted of murder and sentenced to death on account of the sentence being mandatory could move the trial court to reapply for resentencing only.

11. The Supreme Court clarified in Muruatetu & another v Republic; Katiba Institute & 4 others (Amicus Curiae) (Petition 15 & 16 of 2015) (2021) KESC 31 (KLR) (6 July 2021) (Directions), also known as Muruatetu 2, that:-“The decision of Muruatetu and these guidelines apply only in respect to sentences of murder under sections 203 and 204 of the Penal Code…….” (Emphasis mine)

12. In the present case the Petitioner though charged with murder had been convicted of manslaughter and was sentenced to serve 20 years’ imprisonment. From the above decisions by the Supreme Court, the Petitioner could only move this court for resentencing if he had been convicted of murder and sentenced to death, which he was not. Under these circumstances, determining the present Petition would be akin to this court sitting on an appeal on its own decision which convicted the applicant of the offence of manslaughter and sentenced him to serve 20 years’ imprisonment.

13. In the case of Daniel Otieno Oracha v Republic (2019)eKLR, the Petitioner had applied for review of a sentence imposed by a court of concurrent jurisdiction and Aburili J held that:-“14. The law abhors that practice of a judge sitting to review a judgment or decision of another judge of concurrent jurisdiction. Reduction of sentence could only be considered by the Court of Appeal or if this court was sitting on appeal of a judgment of the subordinate court or if the petitioner was seeking for resentence after exhausting appeal mechanisms and not otherwise......16. The judgment of Abida Ali-Aroni J made in accordance with the law has not been challenged. This court cannot sit on appeal of its own judgment or of court of concurrent competent jurisdiction when the Petitioner had an opportunity to ventilate his grievance before the Court of Appeal even if it was to challenge sentence alone.17. Good governance demands that cases be handled procedurally in the right forum. This is because the rule of the thumb that superior courts cannot sit in review/appeal over decisions of their peers of equal and competent jurisdiction much less those courts higher than themselves and that matters falling under the exclusive jurisdiction of Supreme Court under Article 163(3) cannot be dealt with by the High Court........”

14. I am further persuaded by Njuguna J in Lawrence Kariuki Njeru v Republic (2021) eKLR, where she held that:-“………….Further this court is bereft of jurisdiction to review the said judgment as doing so would be tantamount to sitting as an Appellate court on the judgment of the Learned Judge and which act the law abhors.The petitioner ought to ventilate the issue on the resentencing and/or excessive sentence at the Court of Appeal………”

15. This court has already spoken in regards to the Applicant’s sentence that was imposed by the trial court. The Applicant can now only move to the court of appeal.

16. In the end, I find that this court has no jurisdiction to review the Applicant’s sentence and therefore the Application lacks merit and the same is dismissed.

17. Orders accordingly.

RULING DELIVERED, DATED AND SIGNED AT BOMET THIS 16THDAY OF NOVEMBER, 2023. R. LAGAT-KORIRJUDGERuling delivered in the presence of Mr. Njeru for the State, Petitioner present acting in person.