[2022] KEHC 14233 (KLR)

Mohamed v Republic (Miscellaneous Criminal Application E014 of 2022) [2022] KEHC 14233 (KLR) (12 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14233 (KLR)

Republic of Kenya

In the High Court at Bungoma

Miscellaneous Criminal Application E014 of 2022

DK Kemei, J

October 12, 2022

Between

Kassim Mohamed

Applicant

and

Republic

Respondent

Ruling

1. In his notice of motion dated February 23, 2022 and filed on February 25, 2022, the applicant herein Kassim Mohammed, approached this court seeking review of the sentence meted out on him by Hon Ali-Aroni, J (as she then was) in Bungoma HCCR case No 7 of 2013.

2. In the above case, the applicant was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars were that on the February 6, 2013 at Sindani village in Kimilili sub-County he murdered Ali Ibrahim Simiyu.

3. The court record shows that after a full trial, the applicant was convicted and was sentenced to serve ten (10) years imprisonment.

4. It is the above sentence that the applicant implores this court to revise and substitute it with a lesser sentence on grounds inter alia; that he was convicted and sentenced to serve ten (10) years imprisonment for the offence of murder contrary to section 203 as reads with section 204 of the Penal Code CAP 63 laws of Kenya which was ordered to be calculated from the date of the conviction; that the period he spent in custody from January 10, 2013 to March 23, 2018 was not considered by the trial court; that he prays this court to be pleased to consider including the period of 5 years and 2 months (62 months) spent in remand as part of the sentence served in the line with the Court Appeal ruling in Ahmed Abolfathi Mohammed and Another vs Republic (2018) eKLR, where the court held that 'while applying section 333 (2) Criminal Procedure Code alongside its provisions, the sentence of imprisonment ought to run from the date of arrest' ; that the omission by the trial court was not in promotion of his right to fair trial under article 25(2) of the Constitution.

5. Parties agreed to prosecute the application by way of written submissions. In his submissions, the applicant re-iterated the grounds premising his application and urged the court to grant the application so as to enable him secure his rights under the law.

6. In contesting the application, learned counsel for the respondent Ms Mukangu submitted that this court does not have jurisdiction to hear this application as the applicant was sentenced by a High Court and that article 165 of the Constitution establishes the High Court spelling out its jurisdiction by stating that it does not have supervisory jurisdiction over a superior court. She further submitted that according to article 162 of the Constitution a superior court is High Court and the sentence having been meted out by a superior court, this court lacks the jurisdiction to alter the decision of a court of similar jurisdiction. She finally submitted that section 333(2) of the Criminal Procedure Codedoes not in any way apply to this matter as the applicant took a plea on the March 18, 2013 and was released on bond on the March 26, 2013. She urged this court to dismiss the application.

7. I have carefully considered the application and the submissions made by the parties in support and in opposition thereto.

8. I find that it is common ground that the sentence the applicant implores this court to review was imposed by Hon Ali-Aroni, J (as she then was) in the exercise of the High Court’s criminal jurisdiction. This in my view raises a preliminary issue regarding whether this court being a court of concurrent jurisdiction as the court which passed the sentence sought to be reviewed has jurisdiction to entertain and determine the application. This issue was raised by the respondent in its submissions. As jurisdiction is everything, I will seek to first establish whether I have jurisdiction to entertain the application before considering its merits or otherwise.

9. I will start my consideration of the above preliminary issue by noting that although the High Court under article 165 (3) of the Constitution has unlimited jurisdiction in both civil and criminal cases and it also has supervisory jurisdiction over all subordinate courts and tribunals, article 165 (6) of the Constitution makes it clear that the court’s supervisory jurisdiction cannot be exercised over a superior court. Article 162 (1) defines superior courts as the Supreme Court, the Court of Appeal, the High Court and the courts of equal status established under article 162 (2).

10. Article 50 (2) (q) of the Constitution is also relevant. Article 50 (2) of the Constitution guarantees an accused person the right to a fair trial and states as follows:'(2)Every accused person has the right to a fair trial, which includes the right—(a)…..(b)……(c)……(q)if convicted, to appeal to, or apply for review by, a higher court as prescribed by law.'

11. It is clear from article 50 (2) (q) of the Constitution that a sentence passed by the High Court can only be reviewed by a higher court which is the Court of Appeal.

12. It is also instructive to note that this application invokes the revisional jurisdiction of the High Court which is donated by section 362 of the Criminal Procedure Code which is in the following terms:'The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of any such subordinate court.'

13. My reading of the above provision leaves no doubt in my mind that the High Court only has jurisdiction to review orders or decisions made in criminal proceedings by subordinate courts and not decisions made by courts of concurrent jurisdiction or other superior courts.

14. In Samuel Kamau Macharia & Another V Kenya Commercial Bank, the Supreme Court held that a court of law can only exercise jurisdiction conferred on it by either the constitution or other written law or both. The Supreme Court emphasized that a court cannot arrogate to itself jurisdiction which is not conferred on it by the law nor can it expand its jurisdiction through judicial craft.

15. Having demonstrated that the Constitution and the Criminal Procedure Code does not give the High Court power to review its own decisions in criminal proceedings and in the same vein decisions of other superior courts, I have come to the conclusion that I do not have jurisdiction to review the applicant’s sentence as prayed as doing so would be tantamount to reviewing the decision of a court of concurrent jurisdiction or sitting on appeal against the decision of another High Court judge which is not permissible in law.

16. If the applicant was aggrieved by the sentence imposed by this court which appears to be the position, his only recourse was to file an appeal against the sentence to the Court of Appeal under articles 164 (3) and 50 (2) (q) of the Constitution as well as section 379 (1) of theCriminal Procedure Code. That being the position, the applicant’s request cannot be granted. He should proceed and exercise his rights by approaching the Court of Appeal for redress if need be.

17. In view of the foregoing, it is my finding that the applicant’s application dated February 23, 2022 lacks merit. The same is dismissed.

It is so ordered.

DATED AND DELIVERED AT BUNGOMA THIS 12TH DAY OF OCTOBER, 2022. D. KemeiJudgeIn the presence of:Kassim Mohamed ApplicantMukanga for RespondentKizito Court Assistant