[2022] KEHC 13946 (KLR)

Okwudili v Republic (Miscellaneous Criminal Application 58 of 2022) [2022] KEHC 13946 (KLR) (Crim) (5 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13946 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Miscellaneous Criminal Application 58 of 2022

JM Bwonwong'a, J

October 5, 2022

Between

Chukwu Ozoemana James Okwudili

Appellant

and

Republic

Respondent

(Being an application for Re-sentencing on the Judgement of Ogembo J delivered on 24th May 2021 in High Court Criminal Appeal No. 196 of 2019 Republic v Chukwu Ozoemana James Okwudili & Another vs Republic Criminal Appeal 159 & 196 of 2019 )

Ruling

1. The applicant was charged with the offence of trafficking in narcotic drugs contrary to section 4 (a) of the Narcotic Drugs and Psychotropic Substances Control (Act) No 4 of 1994. He was convicted and sentenced by the magistrate’s court to a fine of Kshs 15 million and in default to serve 1-year imprisonment. In addition, he was also sentenced to 15 years imprisonment and upon completion of his sentence, the applicant is to be repatriated to his country of nationality (Nigeria).

2. He filed an appeal in the High Court and the same was dismissed for lacking in merit. His appeal to the Court of Appeal was similarly dismissed.

3. The applicant has filed an application dated February 25, 2022 seeking re-sentencing on the grounds that the court has jurisdiction to hear and determine the application and that he is seriously sick and requests the court to consider his application.

4. In support of his application, the applicant filed an affidavit dated February 25, 2022. He has averred as follows. He is a sick old man, who suffers from diabetic melts, hypertension, kidney problems, and optic care. He has been admitted at Kenyatta National Hospital several times from the time of his arrest to date to manage his conditions. Further, he is the sole breadwinner of his family, his wife is deceased, and his mother is suffering from stomach cancer and requires financial and medical support. Since he was arrested in 2017, he has handled himself responsibly despite the conditions. He urged the court to grant him his freedom to enable him to seek sufficient healthcare in his home country of Nigeria.

5. In opposition, the respondent filed three grounds of opposition dated March 22, 2022. The grounds raised are that the court lacks jurisdiction to entertain the application, litigation ought to come to an end and the application lacks merit and should be dismissed in its entirety.

The Applicant’s Written Submissions 6. Messrs Ondieki and Ondieki Advocates, for the applicant submitted that the legal framework that underpins resentencing is section 333 (2) of the Criminal Procedure Code (cap 75) laws of Kenya. Learned counsel argued that the court should consider the time applicant was held in custody during his trial before he was convicted.

7. He further submitted that the applicant has demonstrated exceptional circumstances to warrant a review of his sentence. Further, the jurisdiction of the court to re-sentence is derived from the constitution itself pursuant to article 50 (6) of the Constitution of Kenya.

8. He urged the court to allow the application for review and reduce the sentence to the period served.

The Respondent’s Written Submissions. 9. Ms. Edna Ntabo learned prosecution counsel submitted that this court cannot sit to review the judgement of a court of concurrent jurisdiction. She contended that if indeed the applicant is aggrieved by the decision of the High Court, he should appeal the said sentence to the Court of Appeal. Learned prosecution counsel submitted that this court lacks jurisdiction to entertain and determine the application.

Issues for Determination. 10. I have considered the rival submissions. As a result, I find that the following are the issues for determination.1. Whether this court has jurisdiction to determine the application.2. Whether the orders sought ought to be granted.

Analysis and determination 11. I note that the applicant is seeking a review of his sentence of 15 years imprisonment and 1 year imprisonment in default of a sentence of a fine of Kshs 15 million that was imposed. The issue that falls for consideration is whether the applicant has met the threshold for the grant of the orders sought.

12. As I have indicated above, the applicant’s appeal to this court against his conviction and sentence by the trial court was heard and determined. This court dismissed his appeal on the conviction and sentence for lacking in merit.

13. However, it is trite law that the jurisdiction of courts in Kenya is always conferred by the Constitution or other written laws and that a court of law can only exercise jurisdiction as conferred by theconstitution or other written law. A court of law cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. The jurisdiction of the High Court includes; unlimited original jurisdiction in criminal and civil matters; jurisdiction to enforce the bill of rights; appellate jurisdiction; interpretative jurisdiction; any other jurisdiction, original or appellate, conferred on it by legislation and supervisory jurisdiction.

14. The applicant herein invites this court to review the sentence of the High Court in Nairobi Criminal Appeal No 196 of 2019 Republic v Chukwu Ozoemana James Okwudili & Another vs Republic and substitute the 15 years imprisonment plus the Kshs 15 million fine in default one year imprisonment with time already served. However, it is my opinion that the only time that this court can review a sentence imposed upon by a court is when such sentence was imposed by a subordinate court pursuant to the provisions of section 362 as read with 364 of the Criminal Procedure Code (cap 75) laws of Kenya or where this court is approached vide an application for re sentencing pursuant to the decision in Francis Karioko Muruatetu & Another vs Republic [2017] e-KLR.

15. In the instant application, the applicant seeks a review of the sentence of a court of concurrent jurisdiction (Ogembo J) and which was imposed upon a petition of appeal. As such, this court cannot review a judgment of a court of concurrent jurisdiction as doing so would be tantamount to sitting as an appellate court on the judgment of Hon Justice D O Ogembo. This court is bereft of jurisdiction to grant the orders as sought herein.

16. Similarly, this court lacks jurisdiction to review a sentence that was approved by the Court of Appeal. It is unthinkable for this court to embark on such an exercise.

17. This application is incompetent and is hereby struck out.

RULING SIGNED, DATED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 5TH OF OCTOBER 2022. J M BWONWONG’AJUDGEIn the presence of-Mr. Kinyua court assistantMr Ogola for the appellant/applicantMs Joy Adhiambo for the Respondent