https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7479

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MERU** **PETITION NO. E30 OF 2022** **JAMES KABEERIA M’ITOBI ………………………….…….… PETITIONER** **VERSUS** **REPUBLIC ………………………………….…………………… RESPONDENT** **JUDGMENT** 1. The Petitioner herein, one James Kabeeria M’itobi was charged, tried and convicted for an offence of attempted Murder and sentenced to life imprisonment by the trial Court. 2. His appeal to the High Court at Meru, vide Criminal Appeal No. 356 of 2001 was dismissed, and a further appeal to the Court of Appeal at Nyeri vide Criminal Appeal No. 175 of 2005, was similarly dismissed, with both Courts upholding the conviction and sentence. 3. The Petitioner has now reverted to this Court by way of a Constitutional Petition, challenging the constitutionality of life imprisonment, contending that the same violates his fundamental rights. 4. The singular issue for determination is whether this Court has jurisdiction to entertain the present petition in light of the concluded appellate process, and if so, whether the Petition is merited. 5. Jurisdiction is the cornerstone of Judicial authority. As was stated in **Owners of the Motor Vessel “Lillian S” – Vs- Caltex Oil (Kenya) Ltd (1989) KLR 1**; **“Jurisdiction is everything. Without it, a Court has no power to make one more step.”** 1. The jurisdiction of this Court flows from **Article 165 of the Constitution,** including the mandate to determine Constitutional question and alleged violations of rights. 2. However, that jurisdiction is not without limits. In **Samuel Kamau Macharia –vs- Kenya Commercial Bank & 2 Others (2012) eKLR,** the Supreme Court emphasized that a Court may only exercise jurisdiction as conferred by the Constitution or statute. 3. It is not in dispute that the Petitioner’s conviction and sentence were subjected to the full Appellate hierarchy up to the Court of Appeal. 4. The present Petition, though framed a Constitutional challenge, seeks in substance to impugn the legality of the sentence of Life imprisonment already upheld on appeal. 5. Courts have consistently held that a Constitutional petition cannot be used as a substitute for an appeal. In **Benjoh Amalgameted Ltd & Another –vs- Kenya Commercial Bank Ltd (2014) eKLR**, the Supreme Court underscored the need for finality in litigation. 6. Similarly, in **John Florence Maritine Serves Ltd –vs- Cabinet Secretary for Transport and Infrastructure and 3 others (2021) eKLR**, the Supreme Court affirmed that the doctrine of res-judicata applies to Constitutional Litigation. 7. The issue of sentence, including it’s legality and propriety, was directly in issue before both the High Court and the Court of Appeal. 8. The Petitioner cannot, by re-framing the issue as a constitutional question, reopen matters that were conclusively determined. 9. This Court finds that:- 10. **The parties are the same;** 11. **The subject matter (sentence of life imprisonment)** is the same; 12. **The issue was heard and finally determined by Courts of competent jurisdiction.** 13. The Petition is therefore barred by the doctrine of res-judicata. 14. The Court further finds that the present proceedings constitute an abuse of the Court process. 15. A litigant cannot evade the Appellate structure by invoking constitutional jurisdiction to achieve what ought to have been pursued on appeal. 16. To allow such a course would undermine the hierarchy of Courts and offend the principal of finality. 17. This Court appreciates that constitutional challenges to sentencing May, in appropriate case, be entertained, as was the case in **Francis Karioko Muruatetu & Another –vs- Republic (2017) eKLR.** 18. However, such a challenge must raise a genuine and novel constitutional issue, and not seek to overturn a concluded appellate determination indirectly. 19. The petition herein is not a generalized Constitutional challenge, but is instead aimed at upsetting the Petitioner’s sentence as confirmed on appeal. 20. In the premises, this Court concludes that it lacks jurisdiction to reopen or sit on appeal over a decision of the Court of Appeal. The petition is also res-judicata, and constitutes an abuse of the Court process. 21. Accordingly, the petition filed on 11th May, 2023 is hereby dismissed in its entirety. **DATED AND DELIVERED AT MERU THIS 27TH DAY OF MAY, 2026.** **S.M. GITHINJI – JUDGE** **27/5/2026** **In the presence of:-** Petitioner – Present at Kamiti Maximum prison. Ms. Adhi for the State