[2022] KEHC 17206 (KLR)

Ng’ang’a v Republic (Miscellaneous Criminal Application E452 of 2021) [2022] KEHC 17206 (KLR) (Crim) (14 September 2022) (Ruling)

Neutral citation: [2022] KEHC 17206 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Miscellaneous Criminal Application E452 of 2021

JM Bwonwong'a, J

September 14, 2022

Between

Jennifer Wanjiru Ng’ang’a

Applicant

and

Republic

Respondent

Ruling

1. The applicant has filed an application dated 10th December 2021 pursuant to orders 48 & 51 of the Civil Procedure Rules, section 1A, 1B, 3 & 3A of the Civil Procedure Act, section 46 of the Prison Act, section 333 (2) of the Criminal Procedure Code and all other enabling provisions of the law.

2. The applicant has prayed that the court finds that the Court of Appeal judgement dated 28th September 2018 against her is fully served. Secondly, she prays that she orders for her release from prison.

3. The application is grounded on the averments on the face of the application and reiterated in her supporting affidavit of a similar date. The applicant avers that she was arrested in September 2011 and charged with eight (8) counts of murder. She was never granted bail and was in custody during the entirety of her trial. On 10th October 2016, she was sentenced to death on count 2. She subsequently filed an appeal in the Court of Appeal, which was heard and determined and judgement was delivered on 29th November 2017. She states that the three-judge bench of the Court of Appeal substituted the conviction of murder with one of manslaughter and the death sentence to 15 years imprisonment for six (6) counts which were to be served concurrently.

4. The applicant avers that she has been in custody since September 2011 to date which is a period of more than 10 years. She contends that she is reformed and is now a born-again Christian. Further, she has also learnt a trade that will assist her to reintegrate into society and cater to the needs of her family. She also claims to be elderly and within the age group considered vulnerable in the prevailing circumstances of Covid 19.

5. She urged the court to release her from prison for having served the term to which she was sentenced.

6. In response, the respondent through the Office of Director of Public Prosecutions filed grounds of opposition dated 3rd March 2022. The grounds raised are that this court is functus officio. Secondly, this court has no jurisdiction to handle and interpret a decision already made at the Court of Appeal. Thirdly, the applicant should seek an interpretation of the Court of Appeal judgement before that court.

7. In addition, the responded submitted that litigation should come to an end. Finally, the application lacks merit, is an abuse of the court process and should accordingly be dismissed.

8. In response to the grounds of opposition, the applicant filed a further affidavit dated 10th March 2022. She contends that her application is civil in nature and different from the criminal proceedings that rendered the judgement. Further, the application appertains to her right to liberty upon completing and/or having served the term determined by the Court of Appeal.

9. She maintains that she is asking this court to execute the orders of the Court of Appeal.

The applicant’s written submissions. 10. Messrs Muigai Kemei and Associates Advocates filed written submission for the applicant dated 9th March 2022. It was submitted that the application herein is seeking the rights to liberty of the applicant. It was the applicant's submission that she is eligible for a remission period and restoration of her liberty after 10 years of incarceration pursuant to the provisions of section 469 (1) and (2) of the Prison Act (Cap 90) Laws of Kenya. Reliance was placed in High Court Criminal Petition No. 68 of 2018 Kenneth Odhiambo & 4 others vs Republic. In that decision, the court discussed the provision of article 50 (2) (p) of the Constitution of Kenya on the right to benefit from the least severe punishment prescribed punishments for an offence.

11. Counsel for the applicant further submitted that section 333 (2) of the Criminal Procedure Code (Cap 75) Laws of Kenya submits that a prisoner ought to be favoured by the law so as to serve the least severe sentence of the offence she is sentenced for.

The respondent’s written submissions 12. For the respondent, Ms. Edna Ntabo learned Prosecution Counsel submitted that the applicant already had a day in court and the High Court made a determination. This court is therefore functus officio. Reliance was placed in the case of Jeremiah Mwita Range vs Republic [2020] eKLR where the court 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.

13. On whether the application is merited, learned Prosecution Counsel submitted that if the applicant is aggrieved by the Court of Appeal decision, she ought to have appealed to the Supreme Court on points of law. She further submitted that the prevailing law on the least severe punishment, the Court of Appeal took into account the time spent in custody.She urged the court to dismiss the application.

Issues for determination 1. Whether the court has jurisdiction to determine the application.

2. Whether the applicant should be granted the orders sought.

Analysis and determination 14. The jurisdiction of this court is donated by the Constitution. Article 165 (3) provides as follows; -… Subject to clause (5), the High Court shall have—(a)Unlimited original jurisdiction in criminal and civil matters;(b)Jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;(c)Jurisdiction to hear an appeal from a decision of a tribunal appointed under this Constitution to consider the removal of a person from office, other than a tribunal appointed under Article 144;(d)Jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of—(i)The question whether any law is inconsistent with or in contravention of this Constitution;(ii)The question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution;(iii)Any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; and(iv)A question relating to conflict of laws under Article 191; and(e)Any other jurisdiction, original or appellate, conferred on it by legislation.…”

15. Jurisdiction is the authority of the court of law to hear and determine cases. Jurisdiction may be general or specific, limited or unlimited. It may be conferred by the constitution or statute. In the case of Republic v Karisa Chengo & 2 Others [2017] eKLR, the Supreme Court had this to state: -… [35] In the above regard, we note that in almost all the legal systems of the world, the term “jurisdiction” has emerged as a critical concept in litigation. Halsbury’s Laws of England (4th Ed.) Vol. 9 at page 350 thus defines “jurisdiction” as “…the authority which a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for decision.” John Beecroft Saunders in his treatise Words and Phrases Legally Defined Vol. 3, at page 113 reiterates the latter definition of the term ‘jurisdiction’ as follows:"By jurisdiction is meant the authority which a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the Court is constituted, and may be extended or restricted by like means. If no restriction or limit is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular Court has cognizance or as to the area over which the jurisdiction shall extend, or it may partake both these characteristics…. Where a Court takes upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing ……”.From these definitions, it is clear that the term “jurisdiction”, as further defined by The Black’s Law Dictionary, 9th Edition, is the Court’s power to entertain, hear and determine a dispute before it…”

16. In the case ofSamuel Kamau Macharia v KCB & 2 Others, Civil Application No. 2 of 2011 stated thus:“A Court’s jurisdiction flows from either the Constitution or Legislation or both. Thus, a Court of Law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by Law”

17. It is urged that the application is civil in nature having been brought under the provisions of the Civil Procedure Rules, 2010. It is important to note that the stated divisions of the High Court were set up for administrative purposes, and the matter having emanated from a trial in the criminal division, this is the right court to deal with the application.

18. It is evident that this matter has gone through the appellate process up until the Court of Appeal. Section 333 (2) of the Criminal Procedure Code provides thus: -“(2)Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.”

19. The sentence in question was meted by the Court of Appeal. This court cannot purport to interrogate the decision of that court as it is functus officio. The Supreme Court expounding on the doctrine of functus officio in Election Petitions Nos. 3, 4 & 5Raila Odinga & Others v IEBC & Others[2013] eKLR citing with approval an excerpt from an article by Daniel Malan Pretorius, in “The Origins of the functus officio Doctrine, with Specific Reference to its Application in Administrative Law,” [2005] 122 SALJ 832 stated thus: -“The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision-making powers may, as a general rule, exercise those powers only once in relation to the same matter.… The [principle] is that once such a decision has been given, it is (subject to any right of appeal to a superior body or functionary) final and conclusive. Such a decision cannot be revoked or varied by the decision-maker.”

20. The upshot of the above is that this court being functus officio is not seized of the jurisdiction to determine the matter.

30. As the result, the application fails and is dismissed.

RULING DELIVERED IN OPEN COURT THIS 14TH DAY OF SEPTEMBER, 2022J M BWONONG’AJUDGEn the presence of:-Mr. Kinyua court assistantMs. Njoroge holding brief for Ms. Muigai for the applicant.Ms. Akunja for the respondent