[2024] KEHC 2008 (KLR)

Ngao v Republic (Petition E017 of 2023) [2024] KEHC 2008 (KLR) (1 March 2024) (Judgment)

Neutral citation: [2024] KEHC 2008 (KLR)

Republic of Kenya

In the High Court at Malindi

Petition E017 of 2023

M Thande, J

March 1, 2024

Between

Onesmus Safari Ngao

Petitioner

and

Republic

Respondent

Judgment

1. By a Petition filed on 28. 9.23, the Petitioner seeks review of the sentence imposed upon him. He also seeks that the period spent in custody pending trial be taken into account. The facts are that the Applicant was convicted of the offence of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act in Malindi Criminal Case No. 204 of 2016 and sentenced to 10 years imprisonment. He appealed both the conviction and sentence in Malindi High Court Criminal Appeal No. 79 of 2018, which appeal was dismissed on 23. 12. 19. Not being satisfied, he filed Criminal Appeal No. 5 of 2020 in the Court of Appeal at Mombasa which was dismissed vide a judgment dated 9. 11. 21. He has now asked the Court to take into account that he is remorseful and now reformed through the rehabilitation programmes offered in prison.

2. It is the Petitioner’s case that that the period already served of more than 2/3 of his sentence is enough punishment. He urged the Court to rehear the matter and grant him a non-custodial sentence to enable him rebuild his life with a new mentality with the new character that he been created within him.

3. In support of his Petition, the Petitioner relied on various authorities, multiple constitutional and statutory provisions as well as the Judiciary Sentencing Policy Guidelines.

4. The Application is opposed by the Respondent vide a replying affidavit sworn on 27. 11. 23 by Joseph Mwangi, prosecution counsel. The Respondent challenged the jurisdiction of the to Court to review the sentence imposed upon the Petitioner given that he has readily admitted that he appealed to this Court and the Court of Appeal without success. The Respondent also contended that parole is not provided for in the existing laws. Further that the recourse available to the Petitioner is to seek remission as provided under Section 46 of the Prisons Act.

5. The first issue that this Court must determine is whether it has the jurisdiction to entertain the Petition. The law, is that this Court may only exercise that jurisdiction which has been conferred upon it by the Constitution, statute or both. In the case of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR the Supreme Court succinctly stated: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. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings.

6. This Court derives its jurisdiction principally form Article 165(3) of the Constitution which confers upon this Court unlimited original jurisdiction in criminal and civil matters, the provision clearly delineates and demarcates what the Court can and cannot do. The jurisdiction of this Court includes supervisory powers. By dint of Article 165(6) however, this Court cannot supervise superior courts. It provides:The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.

7. The superior courts in the court system in Kenya are listed in Article 162 (1) of the Constitution, which provides:The superior courts are the Supreme Court, the Court of Appeal, the High Court and the courts mentioned in clause (2).

8. It is common ground that the Applicant has unsuccessfully appealed to both this Court and the Court of Appeal. What he now seeks is that this Court reviews its own decision and that of the Court of Appeal, a jurisdiction it does not have. In this regard, I associate with the holding in John Kagunda Kariuki v Republic [2019] eKLR, where Ngugi, J, (as he then was) stated:10. In the present case, the Applicant’s appeal has already been heard by the High Court. He cannot return to the High Court for a review of the sentence imposed. He is at liberty to make an argument for reduced sentence at the Court of Appeal.

9. At the helm of the Court system in Kenya is the Supreme Court followed by the Court of Appeal. This Court falls below the Court of Appeal. After the Applicant’s appeal in this Court was dismissed, he appealed to the Court of Appeal and the same was dismissed. That decision of the Court of Appeal is binding on this Court. In light of this, to entertain this matter in respect of which the Court of Appeal has pronounced itself, no matter how compelling the arguments placed before it, would be to violate the constitutional judicial hierarchical norm. In this regard, I am guided by the holding in the case of Kenya Hotel Properties Limited v Attorney General & 5 others [2020] eKLR, where the Court of Appeal stated:As we stated at the beginning of this judgment this appeal is disturbing. The multiplicity of endless proceedings around the same dispute does not bode well for the administration of justice…Its latest rising is the most baffling of all because the petition filed before the High Court sought strange prayers in that the Court there was being asked to annul, strike out, reverse or rescind a judgment of this Court, its elder sibling. In a system of law that is hierarchical in order, such as ours is, it seems to us that such a thing is quite plainly unheard of and for reasons far greater than sibling rivalry. The Constitution itself clearly delineates and demarcates what the High Court can and cannot do. One of things it cannot do by virtue of Article 165(6) is supervise superior courts.Moreover, under Article 164(3) of the Constitution, this Court has jurisdiction to hear and determine appeals from the High Court. Its decisions are binding on the High Court and all courts equal and inferior to it. It is therefore quite unthinkable that the High Court could make the orders the appellant sought as against a decision of this Court to quash or annul them, or that it could purport to direct this Court to re-open and re-hear a concluded appeal. We consider this to be a matter of first principles so that the appellant’s submission that the issue pits supremacy of the courts against citizens’ enjoyment of fundamental rights is really misconceived because rights can only be adjudicated upon by properly authorized courts. Any declaration by a court that has no jurisdiction is itself a nullity and amounts to nothing.It matters not how strongly a court feels about a matter, or how impassioned it may feel or how motivated it may be to correct a perceived wrong; without jurisdiction it would be embarking on a hopeless adventure to nowhere.

10. This finding of the Court of Appeal was affirmed by the Supreme Court in Kenya Hotel Properties Limited v Attorney General & 5 others (Petition 16 of 2020) [2022] KESC 62 (KLR) (Civ) (7 October 2022) (Judgment), which stated:55. We need to emphasize and reiterate that Mutunga CJ did not in any way state that the High Court may in any way, purport to overturn or order final decisions issued by higher courts than itself to start de novo, especially on appeals that have been finally concluded by the highest court at the time. Furthermore, the concurrence by Mutunga SCJ cannot override the judgment by the majority, despite what the appellant chooses to submit. As was thus rightly noted by the High Court and the Court of Appeal, the rule of thumb is that superior courts cannot grant orders to reopen or review decisions of their peers of equal and competent jurisdiction much less those court higher than themselves.

11. The Petitioner’s appeals were heard and determined by this Court and the Court of Appeal, a fact that the Applicant admits. He cannot therefore invite this Court to tread on forbidden ground by reopening the matter to rehear the same, thus defying the constitutional hierarchy of the courts.

12. Article 50 of the Constitution guarantees to every person the right to a fair hearing. Clause (6) thereof, provides as follows:(6)A person who is convicted of a criminal offence may petition the High Court for a new trial if––(a)the person’s appeal, if any, has been dismissed by the highestcourt to which the person is entitled to appeal, or the person did not appeal within the time allowed for appeal; and(b)new and compelling evidence has become available.

13. The above provision seeks to remedy an injustice that might have been occasioned at the trial. In such a case, the conditions set under Article 50(6) are that first an applicant’s appeal has been dismissed by the highest court to which the person is entitled to appeal, or that such applicant has not appealed within the prescribed period. Second, such applicant must demonstrate availability of new and compelling evidence.

14. In the case of Tom Martins Kibisu v Republic [2014] eKLR, the Supreme Court considered the import of Article 50(6) of the Constitution and stated:(41)Article 50 is an extensive constitutional provision that guarantees the right to a fair hearing and, as part of that right, it offers to persons convicted of certain criminal offences another opportunity to petition the High Court for a fresh trial. Such a trial entails a re-constitution of the High Court forum, to admit the charges, and conduct a re-hearing, based on the new evidence. The window of opportunity for such a new trial is subject to two conditions. First, a person must have exhausted the course of appeal, to the highest Court with jurisdiction to try the matter. Secondly, there must be ‘new and compelling evidence’.(42)We are in agreement with the Court of Appeal that under Article 50(6), “new evidence” means “evidence which was not available at the time of trial and which, despite exercise of due diligence, could not have been availed at the trial”; and “compelling evidence” implies “evidence that would have been admissible at the trial, of high probative value and capable of belief, and which, if adduced at the trial would probably have led to a different verdict.” A Court considering whether evidence is new and compelling for a given case, must ascertain that it is, prima facie, material to, or capable of affecting or varying the subject charges, the criminal trial process, the conviction entered, or the sentence passed against an accused person.

15. The Petitioner herein has not met the conditions set out in Article 50(6). He has not demonstrated that he has exhausted the course of appeal, to the highest Court with jurisdiction to try the matter. Secondly, he has not demonstrated the availability of new evidence which despite exercise of due diligence, could not have been availed at the trial and which evidence would have been admissible at the trial, is of high probative value and capable of belief, and which, if adduced at the trial would probably have led to a different verdict.

16. In light of the foregoing, the Petition filed on 28. 9.23, being devoid of merit, is hereby dismissed.

DATED AND DELIVERED VIA MS TEAMS THIS 1ST DAY OF MARCH 2024_____________________M. THANDEJUDGEPage 3 of 3