[2023] KEHC 169 (KLR)

Ruguru & another v Republic (Miscellaneous Criminal Application 416 of 2018) [2023] KEHC 169 (KLR) (Crim) (24 January 2023) (Ruling)

Neutral citation: [2023] KEHC 169 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Miscellaneous Criminal Application 416 of 2018

JM Bwonwong'a, J

January 24, 2023

Between

Samuel Mbugua Ruguru

1st Applicant

Agnes Teresia James Amati

2nd Applicant

and

Republic

Respondent

(Being an application for re-sentencing pursuant to the Supreme Court decision in Francis Karioko Muruatetu & Another vs Republic [2017] eKLR from the decision of Ombija J. in High Court Criminal Case No. 210 of 2003 on 6th August 2008)

Ruling

1The applicants were charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code (Cap 63) Laws of Kenya.

2The particulars of the offence were that on August 29, 2003, at Majengo 'A' Estate in Kajiado District within the Rift Valley Province the applicants murdered Mary Bogoma Amati.

3The applicants were found guilty and were convicted.

4They were sentenced to death.

5Their appeal to the Court of Appeal was dismissed on February 7, 2014.

6Their death sentence was later commuted to life imprisonment by the State President under section 133 of the 2010 Constitution of Kenya.

7They have filed an application before this court seeking re-sentencing pursuant to the Supreme Court decision in Francis Karioko Muruatetu & Another vs Republic [2017] e-KLR

Issues for determination. 8I have considered the application and the respondent's submissions. I find that the issues that arise for determination is as follows.:1. Whether this court has jurisdiction to determine the application2. Whether the application sought ought to be allowed.

Analysis and determination Issue 1

9It 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.

10The applicants herein invite this court to review the sentence of life imprisonment.

11From the record, the applicant filed an appeal against their conviction in the Court of Appeal and the same was dismissed. The only time that this court can review a sentence imposed upon by a court, is when such a sentence is imposed by a subordinate court pursuant to the provisions of section 362 of theCriminal Procedure Code (Cap 75) Laws of Kenya.

12In the instant application, the applicants seek a resentencing of a sentence that was heard and determined by the Court of Appeal. As such, this court cannot review a judgment of that court.

13That being the case, this Court lacks jurisdiction to hear and determine the application for resentencing on a matter that has already been heard and determined by the Court of Appeal.

14Additionally, the applicants have exhausted their judicial remedies.

15I therefore find that it is moot or academic to consider the other issues raised by the applicants.

16Litigation must come to an end.

17The application for resentencing is incompetent and is hereby struck out.

Ruling signed, dated and delivered in open court at Nairobi this 24th day of January 2023. J M BWONWONG’AJUDGEIn the presence of-Mr. Kinyua: Court AssistantThe 1st applicantThe 2nd applicantMs. Aradi holding brief for Mr. Eredi for the 1st applicantMr. Odindo for the applicantMr. Otieno for the respondent