[2023] KEHC 26499 (KLR)

Mwaniki v Republic (Constitutional Petition E011 of 2023) [2023] KEHC 26499 (KLR) (13 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26499 (KLR)

Republic of Kenya

In the High Court at Embu

Constitutional Petition E011 of 2023

LM Njuguna, J

December 13, 2023

Between

Francis Mugendi Mwaniki

Petitioner

and

Republic

Respondent

Ruling

1. The petitioner has filed petition dated August 18, 2023 seeking the intervention of this court on the sentence imposed. The orders sought are as follows:a.A declaration that the Supreme Court’s Judgment directives in Muruatetu’s Case applies to all offences that attract a mandatory sentence;b.A declaration that the Supreme Court’s decision in Petition 15 of 2015 applies equally to sexual offences;c.A declaration that the mandatory sentence offends article 50(2) of the Constitution as the same denied the court its discretion;d.A declaration that the sentence imposed on the petitioner is inconsistent with articles 25(c) and 50(2) of the Constitution;e.An order rendering the petitioner’s case to the trial court for mitigation and determination for an appropriate sentence;f.A determination on whether the petitioner is entitled to the guaranteed remedy in the Muruatetu decision; andg.A declaration that sections 216 and 329 of the Criminal Procedure Code were not complied with.

2. In his petition, the petitioner also relied on the decision in the case of Evans Wanjala Wanyonyi v Republic (2019) eKLR in which the court was guided by the findings in Francis Karioko Muruatetu & another v Republic (2017) eKLR.

3. The petitioner was convicted of the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual offences Act and sentenced to 20 years imprisonment vide Runyenjes Principal Magistrates Criminal Case No 444 of 2014. The petitioner filed an appeal number 62 of 2014 in this court, challenging the conviction and sentence but the appeal was dismissed. He then filed a petition dated 20th January 2019 seeking resentencing based on findings in Francis Karioko Muruatetu & another v Republic (2017) eKLR (supra) and the same was dismissed for want of jurisdiction. The petitioner sought review of this court’s findings on re-sentencing but it was held that the court still lacked jurisdiction to review its own previous decision. All the foregoing attempts have now culminated into the present petition.

4. To this petition, the respondent filed grounds of opposition stating that this court lacks jurisdiction to review its findings as prayed by the petitioner in the instances before the present one, and in light of section 362 of the Criminal Procedure Code.

5. The parties herein filed their written submissions.

6. The petitioner stated that as regards the sentence, he had been condemned to unfair trial as provided for under article 50 of the Constitution. He cited the cases of Francis Karioko Muruatetu & another v Republic (2017) eKLR (supra), Christopher Ochieng v Republic [2018] eKLR, Jared Koita Njiri v Republic (2019) eKLR and Yawanyali v Republic (2018) eKLR and argued that the mandatory nature of the sentence imposed upon him was unfair in the face of the Constitution. He implored upon the court to be guided by the decisions of the other courts and order re-sentencing of the petitioner.

7. The respondent submitted that given the provisions of section 362 and 364 of the Criminal Procedure Code, this court became functus officio after determining the previous application for review. It also cited the publication by Prof Tan in his article titled “Appellate, Supervisory and Revisionary Jurisdiction” and the case of Kiwala v Uganda (1967) EA 758. That the decision of the Supreme Court in the case of Francis Karioko Muruatetu &another v Republic (2017) eKLR (supra) guided that resentencing should be done at the trial court which is the high court in murder trials but in this case, the precedence should not apply as the trial court was the magistrate’s court.

8. The issue for determination herein is whether this court has jurisdiction to grant the orders sought in the petition.

9. The conviction and sentence of the trial court were upheld by this court on appeal through judgment dated November 9, 2015. This court was faced with an application for review where the petitioner sought revision of its finding that it lacks jurisdiction to determine the petition dated January 20, 2019 seeking resentencing. This court rendered itself on jurisdiction in its ruling dated June 11, 2020. The further petition dated February 11, 2021 was also dismissed by this court before its hearing and the court noted that it did not have jurisdiction to review the sentence imposed/upheld by a court of concurrent jurisdiction.

10. On the question of whether this court now has jurisdiction to determine the petition, it is true that the end goal of the petition is to seek re-sentencing. However, this court has already determined the issues sought herein through the ruling dated June 11, 2020. For the petitioner to bring this petition on the same issues means asking this court to sit on appeal in a decision rendered by itself, which would amount to an illegality. The petitioner has not appealed against the said decision but instead brought a similar petition which this court dismissed at the preliminary stages citing lack of jurisdiction.

11. It is, therefore, my finding, as stated hereinbefore, that this court still lacks jurisdiction to entertain the petition, the issues having been exhaustively determined vide ruling dated June 11, 2020.

12. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 13TH DAY OF DECEMBER, 2023. L. NJUGUNAJUDGE