[2023] KEHC 26388 (KLR)

Wanyonyi v Republic (Miscellaneous Application E035 of 2021) [2023] KEHC 26388 (KLR) (8 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26388 (KLR)

Republic of Kenya

In the High Court at Kajiado

Miscellaneous Application E035 of 2021

DR Kavedza, J

December 8, 2023

Between

Mathew Otwane Wanyonyi

Applicant

and

Republic

Respondent

(Being an application for revision of the sentence delivered by R. Nyakundi J, on 26th February 2016 in Kajiado HCCR No. 6 of 2018 Republic vs Mathew Otwane Wanyonyi)

Ruling

1. Before this court is a Chamber Summon Application under certificate of urgency and a supporting affidavit dated 27/11/2019. The applicant is seeking orders that this honourable court be pleased to revise the judgement in Kajiado HCCR No. 6 of 2018, in compliance with the provisions of section 264 of the CPC, article 50 (2) (a) and article 165 (3) (b) of the Constitution of Kenya .

2. The applicant’s case is that he was convicted of the offence of murder contrary to section 203 as read with section 204 of the Penal Code in Kajiado High Court Criminal Case No. 6 of 2018 and sentenced to 35 years’ imprisonment. He urged the court revise the judgement in compliance with section 264 of the CPC, articles 50(2)(a) and 165 (3) (b) of the Constitution of Kenya .

3. The respondents on their part submitted that the sentence passed was legal and lawful by a court of equal jurisdiction and as such, if the applicant was dissatisfied, his recourse lies in the appellate court. They submitted that this court functus officio. They relied on the case of Election Petitions Nos 3,4, & 5 Raila Odinga & others v IEBC & others [2013] eKLR.

Issues for determination 4. I have considered the contents of the application herein and the submissions filed in relation to the same. The application herein is as a result of a judgment of the trial court (High Court) delivered on 24/01/2019 and sentence meted on the applicant on 26/2/2019, wherein the trial court (R. Nyakundi, J.) sentenced the applicant to thirty-five (35) years’ imprisonment.

5. The nature of the application is to review the decision of R. Nyakundi J, which is a court of concurrent jurisdiction. The question is whether this court has jurisdiction to review the decision of a court of concurrent jurisdiction and whether the application herein is merited.

6. The application was premised on section 264 of the Criminal Procedure Code. I however note that section 264 of the Criminal Procedure Code is repealed. I suspect that the petitioner intended to rely on section 364 of the Criminal Procedure Code on powers of the High Court on revision.

7. It is trite law that a court of law 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, and that a court cannot expand its jurisdiction through judicial craft. (See Samuel Kamau Macharia & another v KCB & 2 others App No 2/2011).

8. The jurisdiction of the High court is provided for under article 165(3) of the Constitution and includes unlimited original jurisdiction in criminal and civil matters; jurisdiction to enforce bill of rights; appellate jurisdiction; interpretative jurisdiction; and any other jurisdiction, original or appellate, conferred on it by legislation. The High court further has supervisory jurisdiction over subordinate courts donated by article 165(6) of the Constitution. This jurisdiction is expounded under sections 362 and 364 of the Criminal Procedure Code.

9. The law does not envisage a situation where the High Court sits on appeal of its own decision. This court has the power to review the orders of the subordinate court in exercise of its supervisory powers. It cannot supervise itself, though it can correct errors on the face of the record, because upon pronouncement of the sentence, it is rendered functus officio. That is why Article 50(2) (q) speaks of a “higher court”.

10. The appellant having been dissatisfied with the decision of R. Nyakundi, J. he ought to have appealed to the Court of Appeal. This is appreciating the provisions of article 50(2) (q) of the Constitution of Kenya 2010, which guarantees as a tenet of fair hearing the right of a person if convicted, to appeal to, or apply for review by a higher court. This is since the Court of Appeal is bestowed with jurisdiction pursuant to article 165(3) of the Constitution and section 379(1) of the Criminal Procedure Code (See Antony Nyaga Njagi v Republic [2020] eKLR).

11. The petitioner may be justly aggrieved but this court is the wrong forum for this application.

12. By reviewing the said decision, this court would be arrogating itself the appellate jurisdiction to entertain an appeal from its own decision or decision of a court of concurrent jurisdiction. The law abhors that practice of a judge sitting to review a judgment or decision of another judge of concurrent jurisdiction. Good governance demands that cases be handled procedurally in the right forum. This is because the rule of the thumb is that superior courts cannot sit in review/appeal over decisions of their peers of equal and competent jurisdiction much less those courts higher than themselves.

13. As such, the application is not merited and the same is hereby dismissed.

RULING DATED AND DELIVERED VIRTUALLY THIS 8TH DAY OF DECEMBER, 2023. D. KAVEDZAJUDGEIn the presence of: