[2025] KEHC 3424 (KLR)

MKN v Republic (Constitutional Petition E008 of 2021) [2025] KEHC 3424 (KLR) (18 March 2025) (Ruling)

Neutral citation: [2025] KEHC 3424 (KLR)

Republic of Kenya

In the High Court at Nyahururu

Constitutional Petition E008 of 2021

LN Mutende, J

March 18, 2025

Between

MKN

Petitioner

and

Republic

Respondent

Ruling

1. MKN, the Petitioner/Applicant, was charged and convicted by the Lower Court in Chief Magistrate’s Court Nyahururu Criminal Case No. 1677 of 2015 for Defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act and sentenced to serve life imprisonment.

2. Aggrieved, he appealed to the High Court, in Nyahururu High Court Criminal Appeal No. 61 of 2018 where Wendoh J. substituted life imprisonment with 12 years imprisonment. The court was of the view that at the time of the offence the Petitioner must have been a minor but at the time he was twenty (20) years imprisonment.

3. Subsequently, the Petitioner instituted the instant Petition No. E008 of 2021 seeking a declaration that his constitutional rights and freedoms and fundamental rights were contravened; and, that the custodial sentence was wrongful and as such an order to issue quashing and setting aside the custodial sentence.

4. Kariuki J. considered the petition and, in a judgment, dated 31st May, 2022, reached a finding that the Petitioner had not sufficiently demonstrated threats of infringement of his rights, fundamental freedoms that the trial court proceedings against him violated or threatened his constitutional rights. For that reason, the petition was dismissed.

5. Being further dissatisfied, the Petitioner approached this court through Notice of Motion dated 13th December, 2023 seeking review of the judgment that dismissed the Constitutional Petition of 6th August, 2021 and all other consequential orders, and, that the petition be re-opened and/or reinstated for hearing.

6. The application is premised on grounds that the Applicant was not granted an opportunity to have an appointed counsel to defend him during trial hence most of his constitutional rights were violated and/or contravened during his trial. That in the result, the Petitioner remained in custody, held together with adults from the time of his arrest in the year 2015 when he was a minor of 15 years up to date he is imprisoned serving a jail term.

7. The application is opposed by the Respondent.

8. In the supplementary affidavit filed, the Petitioner introduced a birth certificate that was not presented in the subordinate court and urged that his physical features could not assist in estimating his age.

9. The Respondent urged that the Petitioner never produced documentary evidence nor introduced the issue of being a minor. That addressing the question of age would amount to introducing new evidence in the matter. That the testimony of the prosecution witnesses and the chronology of events as presented led to the court finding that the Petitioner was a dangerous sexual offender.

10. I have considered rival arguments. The key issues to be considered are whether this court has the power to review orders dismissing the petition and reinstate it.

11. The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Rules) were promulgated to assist the court in proceedings taken out under Article 22, 258(1) as read with Article 165 of the Constitution that provides as follows;“Every person has the right to institute court proceedings, claiming that this Constitution has been contravened, or is threatened with contravention.”

12. Rule 25 of the Rules provide that;“An order issued under Rule 22 may be discharged, varied or set aside by the court either on its own motion or on application by a party dissatisfied with the order.”

13. The Rules are silent on whether a final judgment can be reviewed and whether a petition can be reinstated. The Criminal Procedure code provides for revision/review of the order of the subordinate court as provided by Section 362 and 364 of the Criminal Procedure Code which is read in conjunction with Article 165 of the Constitution. The High court has supervisory jurisdiction over the subordinate court but not over a court of concurrent jurisdiction.

14. The petition herein was heard by a competent High Court. The decision reached by Kairuki J. followed hearing of the petition on merit. A perusal of grounds and submissions in support of the petition are a repetition of arguments determined by the court. This therefore means that the court is functus officio. This court cannot re-open the matter as it does not have the authority to do so.

15. In the premises, the application fails and is accordingly dismissed.

16. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 18 TH DAY OF MARCH, 2025. ……………………L.N. MUTENDEJUDGE