[2022] KEHC 11735 (KLR)

Shira v Republic (Miscellaneous Criminal Application E011 of 2021) [2022] KEHC 11735 (KLR) (19 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11735 (KLR)

Republic of Kenya

In the High Court at Kabarnet

Miscellaneous Criminal Application E011 of 2021

WK Korir, J

May 19, 2022

Between

Rashid Ndete Shira

Applicant

and

Republic

Respondent

Ruling

1. The Applicant, Rashid Ndete Shira, through his undated application filed on 8th April, 2021 seeks a review of the prison sentence imposed on him in Eldama Ravine PM Criminal Case No. 3 of 2017. He relies on the decision of the Supreme Court in Petition No. 15 of 2015 (as consolidated with Petition No. 16 of 2015)Francis Karioko Muruatetu & another v Republic; the Court of Appeal decisions in Bernard Mulwa Musyoka v Republic [2019] eKLR and Dismas Wafula Kilwake v Republic[2019] eKLR; Article 50(2)(p) & (q) of the Constitution; and, Section 333(2) of the Criminal Procedure Code, Cap. 75.

2. The background of this application is that the Applicant was charged, tried, convicted and sentenced to 20 years in prison for the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act, 2006 before the Principal Magistrate’s Court at Eldama Ravine in S.O. Case No. 3 of 2017. His appeal to this Court through Kabarnet HCCRA No. 227 of 2017 was dismissed by Muriithi, J on 22nd May, 2019. It appears that the Applicant did not pursue an appeal in the Court of Appeal.

3. Through his submissions in this matter, the Applicant urges the Court to consider meting a lenient and lesser sentence on him on the grounds that at the time of the commission of the offence he was a young man of barely 27 years of age influenced by negative peer pressure; that he was naive and lacked the wisdom to deal with the pressures of life in a more mature way compared to his present state of maturity; that at the time of the commission of crime he lacked innovation and was primitive in life, unable to resist the temptation of benefiting from clandestine activities; that he had no previous criminal record prior to the present conviction; that he has been rehabilitated and there is no fear that he would pose a danger to the society by reoffending; that his parents and twin sister are deceased and he has a wife with four children; and, that the mitigating factors cumulatively amount to substantial and compelling reasons necessitating a deviation from the initially imposed sentence.

4. In support of his plea for a sentence lesser than the one imposed by the trial Court and upheld by this Court, the Applicant also relied on the decisions in the cases of Francis Opondo v Republic [2017] eKLR and Daniel Gichimu & another v Republic [2018] eKLR. On his assertion that the period spent in remand should be taken into account, the Applicant relied on Section 333 of the Criminal Procedure Code and the decision in Ahamad Abolfathi Mohammed & another v Republic[2018] eKLR. The Applicant urges this Court to find that the period already spent in custody from 16th March, 2017 is sufficient punishment. Further, that the Court should also take into consideration his right to remission of sentence in determining this application.

5. Through submissions dated 16th December, 2021, the Respondent submits that the Applicant’s right of appeal to this Court on both conviction and sentence were fully spent after his appeal was dismissed and he has no further recourse to this Court over the same issues. According to the Respondent, the Applicant’s only recourse is to appeal to the Court of Appeal.

6. According to the Respondent, this Court (the High Court) is now functus officio and lacks jurisdiction in so far as it has addressed the issues raised in this application and delivered judgment on the same. In support of the assertion that this Court has no jurisdiction to revise the sentence in a matter already determined through an appeal, the Respondent relied on the decision in Kiwala v Uganda [1967] E.A. 758.

7. It is urged by the Respondent that the Criminal Procedure Code only recognizes a single revision by this Court and there is no room for further revision once the Court has revised its decision. This argument is supported by reference to the decision inRepublic v Sironga & Mindo [1918] 7 KLR 148 where it was held that the High Court becomes functus officio once it revises a sentence and cannot subsequently revise an order it has made.

8. Before delving into the substance of the Applicant’s case, I must first address the issue of jurisdiction which has been raised by the Respondent. The Respondent argues that having appealed to this Court against his conviction and sentence, the Applicant’s right to seek review of the sentence before this Court is already spent, and the only recourse available to him is to appeal to the Court of Appeal. According to the Respondent, this Court is functus officio because it has rendered itself on the matter.

9. The law on jurisdiction was stated by the Supreme Court inSamuel Kamau Macharia & another v Kenya Commercial Bank Ltd & 2 others, Application No. 2 of 2011 thus:“A court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court 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…”

10. It is not disputed that the Applicant’s Kabarnet High Court Criminal Appeal No. 227 of 2017 was heard and determined by this Court. It is on this fact that the jurisdiction of this Court is being questioned by the Respondent. The Applicant having appealed to this Court and his appeal determined did not pursue further appeal to the Court of Appeal. The issue is whether this Court is indeed possessed of jurisdiction to review its own decision in the appeal.

11. The power of a court to review its decision was discussed by the Supreme Court inFredrick Otieno Outa v Jared Odoyo Okello & 3 others [2017] eKLR as follows:“(92)Taking into account the edicts and values embodied in Chapter 10 of our Constitution, we hold that as a general rule, the Supreme Court has no jurisdiction to sit on appeal over its own decisions, nor to review its decisions, other than in the manner already stated in paragraph (90) above. However, in exercise of its inherent powers, this Court may, upon application by a party, or on its own motion, review, any of its Judgments, Rulings or Orders, in exceptional circumstances, so as to meet the ends of justice. Such circumstances shall be limited to situations where:(i)the Judgment, Ruling, or Order, is obtained, by fraud or deceit;(ii)the Judgment, Ruling, or Order, is a nullity, such as, when the Court itself was not competent;(iii)the Court was misled into giving Judgment, Ruling or Order, under a mistaken belief that the parties had consented thereto;(iv)the Judgment or Ruling, was rendered, on the basis of a repealed law, or as a result of, a deliberately concealed statutory provision.These principles are no doubt informed by various judicial authorities, in other jurisdictions, such as the ones we have cited from Nigeria, United Kingdom, India and South Africa.”

12. The Supreme Court went ahead and concluded that:“(95)We have unambiguously held, that an application for review, is not meant to afford the losing party, an opportunity to re-litigate or re-open a matter merely because such party is unhappy with the outcome. The Applicant is asking this Court to sit on appeal over its own Judgment. We have unequivocally stated that the Supreme Court lacks jurisdiction to entertain a second appeal to itself. Once the Court has heard and determined an appeal from the Court of Appeal, it becomes functus officio. The Judgment stands until such time, if at all, that it is departed from in a future case or, reviewed, within the confines that we have clearly outlined.”

13. Therefore, in order for a party to successfully move a court to review its own decision or that of a court of coordinate jurisdiction, the party is required to meet the conditions established in the just cited case. The Applicant has not demonstrated that any of the grounds for review of this Court’s judgement exist in his case. No reason has therefore been advanced to warrant a review of the judgement of Muriithi, J by this Court.

14. The Applicant has, however, hinged his application for review of sentence on the decisions in Petition No. 15 of 2015 (as consolidated with Petition No. 16 of 2015) Francis Karioko Muruatetu & another v Republic; Bernard Mulwa Musyoka v Republic [2019] eKLR and Dismas Wafula Kilwake v Republic[2019] eKLR. The Applicant’s reliance on the cited decisions will not bear any fruits for the reason that the decisions in Bernard Mulwa Musyoka(supra) and Dismas Wafula Kilwake(supra) were based on the judgement delivered by the Supreme Court in 2017 in Petition No. 15 of 2015 (as consolidated with Petition No. 16 of 2015) Francis Karioko Muruatetu & another v Republic. It is, however, noted that the Supreme Court revisited its 2017 decision on 6th July, 2021 in Francis Karioko Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2021] eKLR, and observed that:“(11)The ratio decidendi in the decision was summarized as follows;“69. Consequently, we find that Section 204 of the Penal Code is inconsistent with the Constitution and invalid to the extent that it provides for the mandatory death sentence for murder. For the avoidance of doubt, this decision does not outlaw the death penalty, which is still applicable as a discretionary maximum punishment”.We therefore reiterate that, this Court’s decision in Muruatetu, did not invalidate mandatory sentences or minimum sentences in the Penal Code, the Sexual Offences Act or any other statute.(12)Likewise, our orders set out in the previous paragraphs specifically directed the Attorney General to prepare a detailed professional review “in the context of this judgment…. with a view to setting up a framework to deal with sentence re-hearing cases similar to that of the petitioners herein”, and no other case.We stated fairly clearly too, at Paragraph 111 of the Judgment, the extent to which our holding was applicable as follows:“It is prudent for the same Court that heard this matter to consider and evaluate mitigating submissions and evaluate the appropriate sentence befitting the offence committed by the petitioners. For the avoidance of doubt, the sentencing re-hearing we have allowed, applies only for the two petitioners herein. In the meantime, existing or intending Petitioners with similar cases ought not approach the Supreme Court directly but await appropriate guidelines for disposal of the same. The Attorney General is directed to urgently set up a framework to deal with sentence re-hearing of cases relating to the mandatory nature of the death sentence - which is similar to that of the petitioners in this case.” …(14)It should be apparent from the foregoing that Muruatetu cannot be the authority for stating that all provisions of the law prescribing mandatory or minimum sentences are inconsistent with the Constitution. It bears restating that it was a decision involving the two Petitioners who approached the Court for specific reliefs. The ultimate determination was confined to the issues presented by the Petitioners, and as framed by the Court.”

15. It is evident from the clarification by the Supreme Court that its 2017 decision in Petition No. 15 of 2015 (as consolidated with Petition No. 16 of 2015) Francis Karioko Muruatetu & another v Republic cannot be used as a basis for review of any other sentence apart from the death sentence in murder cases as prescribed by Section 204 of the Penal Code.

16. The case before this Court is in respect of a conviction and sentence arising from the provisions of the Sexual Offences Act, 2006. It therefore goes without saying that the 2017 judgement of the Supreme Court in Petition No. 15 of 2015 (as consolidated with Petition No. 16 of 2015) Francis Karioko Muruatetu & another v Republic is not applicable to the offence for which the Applicant was convicted. In addition, it is noted that when Muriithi, J delivered the judgement on 22nd May, 2019 in the Applicant’s appeal in Kabarnet HCCRA No. 227 of 2017, the Judgement of the Supreme Court in Petition No. 15 of 2015 (as consolidated with Petition No. 16 of 2015) Francis Karioko Muruatetu & another v Republic was already in existence and the learned Judge must have been aware of the Judgement and took it into account when making his decision.

17. Considering what has been stated above, I come to the inevitable conclusion that this Court has no jurisdiction to entertain the Applicant’s application. The application lacks merit and is therefore dismissed.

DATED, SIGNED AND DELIVERED AT KABARNET THIS 19THDAY OF MAY, 2022. W. KORIR,JUDGE OF THE HIGH COURT