[2022] KEHC 1477 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT GARISSA

CRIMINAL MISC. APPLICATION NO.38 OF 2020

SIMON KANUI MWENDWA…….…………...……...……………APPLICANT

VERSUS

REPUBLIC……………….………………………………………RESPONDENT

RULING

1. The Applicant Simon Kanui Mwendwa was charged with the offence of robbery with violence under Section 296(2) of the Penal Code in Criminal Case No. 27 of 2014. He was convicted and sentenced to suffer death. He thereafter appealed to this court and his appeal was dismissed. He filed a second appeal to the Court of Appeal; the conviction was upheld however his sentence was reduced to 20 years imprisonment.

2. It is against this background that the Applicant has moved this court by way of an application seeking for a revision of the decision of the Court of Appeal reducing the death sentence and sentencing him to 20 years imprisonment.

3. The application is predicated on grounds that; the Applicant was a first offender at the time of sentencing; he has since achieved Grade 1, 2 & 3 Trade Test in Vocational Training as a tailor and

has reformed while in prison.

4. The Respondent filed grounds of opposition to the effect that the application is an abuse of court process; this court dealt with this matter in Appeal No. 124 of 2014, the Court of Appeal had already altered the initial sentence and lastly that this court lacks jurisdiction.

5. The matter was canvassed by way of written submissions which may be summarized as follows;

Applicant’s Submissions

He is seeking for computation of his time in custody under Section 333(2) of the Criminal Procedure Code. Secondly this court has inherent jurisdiction to review the sentence that was meted by the Court of Appeal hence his application cannot be an abuse of court process.

His Criminal Appeal was No. 27 of 2014 as opposed to 124 of 2014, the subject matter is not similar to the application before court. Further in as much as this court cannot interfere with the sentence by the Court of Appeal it can review the same based on Article 50(2) of the Constitution.

Respondent’s Submissions

After the appeal was heard and determined this court was rendered fuctus officio. They cited the Supreme Court in the case of Raila Odinga & 2 Others vs IEBC [2013] eKLR, John Kamau Gachuha v R [2019] eKLR, John Kagunda Kariuki vs R [2019] eKLR.

6. In the hierarchy of courts or the court structure an appeal from the Magistracy comes to the High Court as the first appellate court. Then moves to the Court of Appeal for a second appeal and lastly the Supreme Court as of right in a case involving the interpretation of the Constitution; and where the Court of Appeal or the Supreme Court certifies that the matter is of general public importance.

7. Having failed in this court the Applicant preferred a second appeal and succeeded in as far as the sentence is concerned. The Court of Appeal considered he was a first offender and the mitigation he raised.

8. By asking this court to review the Court of Appeal decision is to ask this court to sit an appeal over the decision of that court which is not tenable in law.

9. Secondly the principle of finality comes into play in this matter. The Applicant had an opportunity to raise any issue regarding this case at three levels which he did. The issue of sentence was canvassed in this court and thereafter escalated to the Court of Appeal which considered all the matters relevant and reviewed the sentence from death to 20 years. In Raila Odinga & 2 Others vs IEBC & 3 Others [2013] eKLR the Supreme Court cited with approval Daniel Malau Pretorius sentiments that; -

“The fuctus 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.”

10. This court differently constituted affirmed the death penalty. The applicant thereafter rightly referred the issue to the Court of Appeal. The Court of Appeal set aside the sentence affirmed by this court. This court cannot review that decision. This court simply put lacks jurisdiction.

11. The Applicant had an opportunity to raise his concern in relation to Section 333(2) in the Court of Appeal. As the proceedings of the Court of Appeal were not placed before this court it is not clear if he raised the issue. Secondly this was introduced only at submissions and was not part of the application.

12. Based on the above the application is found to be unmerited and dismissed.

DATED, DELIVERED AND SIGNED AT GARISSA THIS 3RD DAY OF MARCH, 2022.

……………….………………

ALI-ARONI

JUDGE