[2022] KEHC 13050 (KLR)

Ng’ang’a v Republic (Miscellaneous Application E452 of 2021) [2022] KEHC 13050 (KLR) (Crim) (14 September 2022) (Ruling)

Neutral citation: [2022] KEHC 13050 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Criminal

Miscellaneous Application E452 of 2021

JM Bwonwong'a, J

September 14, 2022

Between

Jennifer Wanjiru Ng’Ang’A

Applicant

and

Republic

Respondent

Ruling

The Case For The Applicant 1. The applicant under certificate of urgency has applied for the following orders.1. Spent.2. An order to find that the Court of Appeal sentence dated September 28, 2018 that was meted out against the prisoner/applicant is fully served3. An order directing the release of the prisoner from prison4. An order to make provision for costs.

2. The application is supported by 13 grounds that are set out in the notice of motion dated December 10, 2021, with the major grounds being the following. The applicant is serving 15 years sentence of imprisonment and throughout her trial in the High Court, she was in remand custody. She was convicted of murder in counts 2, 5, 6, 7, and 8 on July 28, 2016. She was sentenced to death on count 2 on October 10, 2016 and the death sentences on counts 5,6, 7 and 8 were kept in abeyance

3. Following her appeal to the Court Appeal, the convictions for murder were set aside and in their place, they were substituted with convictions for manslaughter. The Court of Appeal then sentenced the applicant to a 15-year sentence in all the six counts of manslaughter; which sentences were ordered to run concurrently.

4. The applicant has been in custody for more than 10 years

5. She has now reformed and has become a born again christian whilst serving her sentence.

6. She has also learned a trade which will assist her to reintegrate into society and will also cater for the needs of her family.

7. In addition to the foregoing grounds the applicant has deposed to 11 paragraphs supporting affidavit, whose major averments are as follows. The applicant is serving her 11th year in prison since her arrest. She also averred that the law provides that she should serve two thirds of her prison terms.

8. Furthermore, that the applicant has also deposed that following the advice of her lawyer she believes that article 23 of the 2010 Constitution of Kenya, the court is required to interpret the bill of rights in the most favourable manner in respect of herself. She has also deposed that under section 333 (2) of the Criminal Procedure Code and section 46 of the Prisons Act 2016, the period she spent in pre-trial custody should have been taken into account by the Court of Appeal in meting out the 15 year sentence of imprisonment.

9. She has finally, deposed that it is only fair that she be released from prison for having served her full term of imprisonment.

10. The other averments are a replica of the grounds that are set out on the face of the notice of motion, which I hereby decline to reproduce.

11. The applicant further filed a relying affidavit in response to the respondent’s grounds of opposition; whose major averment are as follows. “That the court became functus officio upon rendering judgement was the court that heard the criminal case wherein I was charged with murder.”

12. The applicant has also deposed that this application is separate and different from the criminal proceedings at the high court that rendered its judgement. Additionally, the applicant has deposed that the instant application is civil in nature and it only appertains to his right to liberty upon completing/or having served the term of imprisonment, which was determined by the Court of Appeal after it allowed the applicant’s appeal. The current application only seeks the release of the applicant from prison and it is merely to execute the order of the Court of Appeal.

13. The application agrees that litigation must come to an end. She adds that her application is under section 333 (2) of the Criminal Procedure Code (cap 75) Laws of Kenya and section 46 of the Prisons Act.

14. The applicant has deposed that this court has jurisdiction to determine this application since the High Court and Court of Appeal did not consider the provisions of section 333 (2) of the Criminal Procedure Code and section 46 of the Prisons Act during the hearing and determination of the case.

The Submissions Of The Applicant 15. Ms Muigai for the applicant filed written submissions in support of the applicant’s application.

16. She has cited a number of authorities including orders 48 and 51 of the Civil Procedure Rules. order 48 prescribes that all applications should be filed by way of a miscellaneous application. order 51 prescribes that the application should be by way of notice of motion.

17. Counsel has further cited sections 1A and 1B of the Civil Procedure Act (cap 21) Laws of Kenya. Section 1A provides for a just expeditious, proportionate and affordable resolution of the civil disputes, while section 1B imposes a duty upon the court to ensure that the overriding objectives of resolving civil disputes are achieved.

18. Furthermore, counsel has cited sections 3 and 3A of the Civil Procedure Act which empowers the court to mete out justice without restraint or limitation.

19Counsel has also cited section 46 (1) and (2) of the Prisons Act (cap 9) Laws of Kenya, which entitles a prisoner to remission of up to one third of his sentence if his industry and conduct is good.

20. Counsel has also cited article 50 (2) (p) of the Constitution of Kenya which is in relation to the fair trial rights conferred upon an accused person. This provision requires the court impose a lesser severe sentence if there has been a change of sentence during the trial of an accused.

The Submissions Of The Respondent 21. Ms Edna Ntabo, counsel for the respondent has filed written submissions in opposition to the application.

22. She has submitted that the applicant was charged with six counts of murder contrary to section 203 as read with section 204 of thePenal Code (cap 63) Laws of Kenya vide Nairobi High Court Criminal Case No 77 of 2011. She was convicted in all the six counts and sentenced to death in count 1 only.

23. She filed an appeal in the Court of Appealvide Nairobi court of Appeal Criminal Appeal No 196 of 2016. The Court of Appeal (Kiage and Murgor, JJA) on September 28, 2018 allowed the appeal. They quashed the conviction and sentence of death and, in its place, substituted convictions for manslaughter and proceeded to sentence the applicant to a sentence of 15 years imprisonment in each count; which sentences were ordered to run concurrently.

24. Counsel has submitted that this court lacks jurisdiction to hear and determine this application; since this court (Lesiit, J as she was then) ably dealt with this matter. In relation to the meaning of the term functus officio counsel cited the case of Jeremiah Mwita Range v Republic(2020) e-KLR in which that court cited the Court of Appeal decision inTelkom Kenya Ltd John Ochanda(2014) e-KLR, where it was held that:“functus officio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon.”

25. This court (Lesiit, J as she was then) proceeded to observe that:“…the appellant is challenging the order in sentence by Hon Kimaru, J made on the March 13, 2019. The learned judge is of parallel jurisdiction as this court, meaning that this court has already rendered a final determination on the matter before me. That being the case, this court cannot entertain the instant application. Similarly, it was not open for the applicant to return to this court to challenge the decision made by this court. In the result, the application is incompetent and is accordingly struck out.”

26. Counsel has further cited section 364 of theCriminal Procedure Codeand has submitted that the provisions of that section only empower the High Court to revise orders of the lower magisterial courts. She has further submitted that the only remedy available to the applicant was to appeal to the Supreme Court.

27. In relation to reliance being placed on section 333 (2) of the Criminal Procedure Code by the applicant, counsel submitted that the Court of Appeal had already quashed the convictions for murder and substituted them with convictions for manslaughter and the proceeded to sentence the applicant to 15 years imprisonment. The Court of Appeal (Kiage and Murgor, JJA) in Nairobi Court of Appeal Criminal Appeal No 196 of 2016, supra, observed that:“…. We note that manslaughter carries a maximum sentence of life imprisonment. Given the number of casualties out of the appellant’s deadly brew and trade, we order that she shall serve a term of fifteen (15) years in prison for each of the 6 counts on which she was convicted. The sentence shall run concurrently.”

Issues For Determination 28. I have considered the affidavits, the submissions and the authorities cited by counsel for the applicant. I have also considered the submissions and authorities cited by the counsel for the respondent.

29. As a result, I find the following to be the issues for determination.1Whether this court has jurisdiction to hear and determine this application.2. Whether the applicant has made out a case for the grant of orders sought.

Issue 1 30. I find that it is common ground between the parties that the applicant was convicted of six counts of murder and sentenced to death by this court (Lesiit, J as she was then) in count 1 only in Nairobi High Court Criminal Case No 77 of 2011. Her appeal to the Nairobi Court of Appeal in Criminal Appeal No 196 of 2016, was allowed with the result that the convictions and sentences for murder were quashed by that court. That court substituted the convictions for murder with those for manslaughter and proceeded to sentence the applicant to 15 years imprisonment.

31. I agree with Ms Edna Ntabo that the High Court (Lesiit, J as she was then) becomefunctus officio after rendering its final judgement in the case. Similarly, the Court of Appeal become functus officio after rendering its final judgement in the case.

32. I also agree with Ms Edna Ntabo that the applicant’s remedy lay in appealing to the Supreme Court; although that is not the only remedy. I find that the applicant also had a right and still has a right to apply for pardon and/or clemency to the presidential power of mercy advisory committee under article 133 of the 2010 Constitution of Kenya.

33. I further find as persuasive the decision of this court (Lesiit, J as she then was) in Jeremial Mwita Range v Republic(2020) e-KLR, in which that court cited the Court of Appeal decision in Telkom Kenya Ltd John Ochanda (2014) e-KLR, where it was held that:“functus officio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon.”

34. It is therefore clear that what the applicant has done is to return to this court over which I am now presiding through characterizing her a application as a civil application in nature. This is constitutionally and legally impermissible. In this regard, I find that the current application is on all fours with the decision of this court which pronounced itself as follows: “…The appellant is challenging the order in sentence by Hon Kimaru, J made on the March 13, 2019. The learned judge is of parallel jurisdiction as this court, meaning that this court has already rendered a final determination on the matter before me. That being the case, this court cannot entertain the instant application. Similarly, it was not open for the applicant to return to this court to challenge the decision made by this court. In the result, the application is incompetent and is accordingly struck out.”

35. I find the immediate foregoing to be a persuasive and compelling pronouncement with which I agree.

36. In the premises, find that this court is functus officio with the result that it lacks jurisdiction to entertain and determine the current application.

Issue 2 37. I find that this court lacks jurisdiction to entertain and determine this application. I therefore find that it is unnecessary to consider the attractive and provocative submissions of the applicant; since the remaining issues raised have become moot or academic. See Attorney General v Ally Kleist Sykes (1957) EA 257.

38. Consequently, I find that the application is incompetent and is hereby struck out.

RULING SIGNED, DATED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 14TH DAY OF SEPTEMBER 2022. J M BWONWONG’AJUDGEIn the presence of-Mr. Kinyua court assistantMs Njoroge holding brief for Muigai for the applicantMs Akunja for the Respondent