[2023] KEHC 26891 (KLR)

Wanyama v Republic (Petition 37 of 2019) [2023] KEHC 26891 (KLR) (15 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26891 (KLR)

Republic of Kenya

In the High Court at Eldoret

Petition 37 of 2019

JRA Wananda, J

December 15, 2023

Between

Laban Wekesa Wanyama

Petitioner

and

Republic

Respondent

Judgment

1. The Petitioner instituted this matter vide the Application dated 26/05/2019 through which he is seeking that the Court reviews his sentence and consider, under the provisions of Section 333(2) of the Criminal Procedure Act, the time that he spent in custody before he was sentenced. In effect therefore, he is seeking re-computation of the period that he is to spend in prison.

2. The Petitioner was charged with the offence of murder contrary to Section 304 of the Penal Code in Eldoret High Court Criminal Case No. 33 of 2008. He was convicted on 24/06/2015 and sentenced to death on 2/07/2015. Dissatisfied with the decision, he filed an appeal, namely, Court of Appeal Criminal Appeal No. 53 of 2017. On 6/03/2019, the Court of Appeal dismissed the Appeal on conviction but on sentence, substituted the death penalty with 20 years’ imprisonment.

3. Learned Counsel for the State, Ms. Okok opposed the Petition. She submitted orally and stated that the record shows that the Petitioner was arraigned on 23/10/2008, he took plea on 20/11/2008 and he was never released on bond throughout the trial. Counsel submitted that the Appellant was sentenced on 2/07/2015, that he filed an appeal to the Court of Appeal being Appeal No. 53 of 2017 in which his sentence was reduced to 20 years “as from the date of the sentence by the High Court”.

4. I note that that the period spent by the Appellant in custody before sentence was almost 7 years. Indeed, this is a very long time. If taken into account, it would considerably reduce the period of time that the Petitioner will spend in prison.

5. However, Counsel for the State submitted that since the Court of Appeal has already pronounced itself on the issue sentence in the manner set out, the High Court cannot interfere and therefore the Petition should be dismissed.

6. It is clear that the issue for determination herein is “whether this High Court can competently revisit the issue of computation of the prison sentence imposed despite the fact that Court of Appeal has already made determinations on the same issue”.

7. Revisionary Jurisdiction of the High Court is governed by Sections 362 and 364 of the Criminal Procedure Code which provide as follows;362. Power of High Court to call for recordsThe High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.”....................................................364(1) In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may –(a)in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358, and may enhance the sentence;(b)in the case of any other order other than an order of acquittal, alter or reverse the order.

8. From the provisions stated above, it is evidentthis Court’s jurisdiction on revision is limited to correcting a manifest error in the proceedings of the trial Court so as to ensure the fair administration of justice. Further, and more importantly, that jurisdiction is only exercisable over subordinate Courts. By virtue of the fact that the issue of computation of the sentence which is what the Petitioner seeks to be reopened has already been ruled upon by the Court of Appeal, this Court has no jurisdiction to interfere.

9. In the case of Kenya Hotel Properties Limited vs. Attorney General & 5 Others (2020) eKLR, the Court of Appeal expressed itself as hereunder:“Despite several declarations of finality made by various Judges of the High Court and benches of this Court, the matter appears to have an uncanny capacity for reincarnation. 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. We think the Supreme Court in the S.K MACHARIA case captured the essence of the need for courts to respect and stay within jurisdictional tethers and constraints…”

10. In the premises, this Petition (Application dated 26/05/2019) is dismissed in its entirety as this Court lacks the jurisdiction to revisit or reopen a matters already determined by the Court of Appeal, a higher Court in the hierarchy of Courts.

DELIVERED, DATED AND SIGNED AT ELDORET THIS 15*TH DAY OF DECEMBER 2023. .................WANANDA J.R. ANUROJUDGE