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JudgmentBENSON KIMANI MUNYUA alias DOGO VS The Republic5 min read

BENSON KIMANI MUNYUA alias DOGO VS The Republic

High Court at Mombasa High Court · · Wendy Micheni


(ORIGINATING FROM CRIMINAL CASE NO. 2441 OF 2012 AT MOMBASA AND HCCR APP NO. 196 OF 2014)


Introduction

  1. This Honourable Court is called to determine the undated Notice of Motion application by the Applicant who sought resentencing. The grounds of which were that the Applicant contended that Section 216 and 329 of the Criminal Procedure Code limits second appeal to conviction only; if not set aside by the 1st Appellate Court, the mandatory death sentence which was commuted to life imprisonment violates the right to a fair hearing under Article 50(2)(q) of the Constitution. According to him his mitigation circumstances were not considered.
  2. According to him at the time of his committal he was 18 years old. He had been in prison for 11 years since his arrest. He was remorseful for the action that led to serve the death sentence which was later commuted to life imprisonment.
  3. A sentence review report was filed by Boytone Omondi dated 17th September, 2024 who stated that the applicant had served a considerable time in prison, which one month remaining to the completion of his sentence.  {this was not factual }.The Applicant’s indication was that he had learned his lesson for the time he had been in custody and committed to live more responsibility in the society. He prayed that the court to commute the remainder of his sentence to a non – custodial order so as to reunite with this family and assist his dependents.

Analysis and Determination

  1. The Supreme Court in Francis Karioko Muruatetu & Another – Versus -  Republic [2017] eKLR further gave the following guidelines with regard to mitigating factors applicable in a re-hearing sentence for the conviction of a murder charge thus:

[71]. As a consequence of this decision, paragraph 6.4-6.7 of the guidelines are no longer applicable. To avoid a lacuna, the following guidelines with regard to mitigating factors are applicable in a re-hearing sentence for the conviction of a murder charge:

(a) age of the offender;

(b) being a first offender;

(c) whether the offender pleaded guilty;

(d) character and record of the offender;

(e) commission of the offence in response to gender-based violence;

(f)  remorsefulness of the offender;

(g) the possibility of reform and social re-adaptation of the offender;

(h) any other factor that the Court considers relevant.

[72] We wish to make it very clear that these guidelines in no way replace judicial discretion. They are advisory and not mandatory. They are geared to promoting consistency and transparency in sentencing hearings. They are also aimed at promoting public understanding of the sentencing process. This notwithstanding, we are obligated to point out here that paragraph 25 of the 2016 Judiciary Sentencing Policy Guidelines states that:

“25.  GUIDELINE JUDGMENTS          

25.1 Where there are guideline judgments, that is, decisions from the superior courts on a sentencing principle, the subordinate courts are bounded by it. It is the duty of the court to keep abreast with the guideline judgments pronounced. Equally, it is the duty of the prosecutor and defence counsel to inform the court of existing guideline judgments on an issue before it.””

  1. Having considered the above, I find that indeed this court has jurisdiction to entertain the application based on the decision of the Supreme Court in Muruatetu (supra). The Applicant has given his mitigation which I will consider alongside the circumstances of the case. The Applicant was convicted and sentenced for the offence of Robbery with violence contrary to Section 295 as read with Section 296(2) of the Penal Code.
  2. The jurisdiction of the High Court is provided for under article 165 of the Constitution of Kenya 2010 and it includes unlimited original jurisdiction in criminal and civil matters; jurisdiction to enforce bill of rights; appellate jurisdiction; interpretative jurisdiction; any other jurisdiction, original or appellate conferred on it by legislation and supervisory jurisdiction. The supervisory jurisdiction in criminal matters is expounded under Section 362-364 of the Criminal Procedure Code.
  3. Under the said sections, this court has jurisdiction to 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. It is therefore clear that this court cannot and does not have jurisdiction to review the decision of a court of concurrent jurisdiction. Once the High Court delivered its judgment (though differently constituted) on the murder case, it became functus officio over the matter herein.
  4. The law abhors that practice of a judge sitting to review a judgment or decision of another judge of concurrent jurisdiction. 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. The court which ought to deal with an issue arising out of the decision of this court is the Court of Appeal as it is the one with jurisdiction under Article 164(3) of the Constitution and Section 379(1) of the Criminal Procedure Code.
  5. This is in appreciating the provisions of Article 50(2)(q) of the Constitution of Kenya 2010 which guarantees the right of a person if convicted, to appeal to, or apply for review by, a higher court as prescribed by the law. (See Daniel Otieno Oracha – Versus - Republic [2019] eKLR). As such, this Court does not have jurisdiction over the resentencing application herein being that the Court of Appeal already delivered itself on the matter.
  6. However as pointed out above, there is a new jurisprudence which was developed by the Supreme Court in Muruatetu’s case (supra), and wherein the Supreme Court found that the mandatory death sentence under Section 204 of the Penal Code is unconstitutional as it takes away the discretion of the court while sentencing. The Supreme Court gave this court (being the trial court in murder charges) a special jurisdiction to hear a party on resentencing where an accused person was sentenced under the mandatory Section 204 of the Penal Code. (See paragraphs 110 and 111 of the said decision).
  7. I think I have said enough to prove that the application herein is wrongly before this court. This court does not have jurisdiction over the matter. It is trite that where a court is bereft of jurisdiction, it should down its tools the moment it holds the opinion that it is without jurisdiction; jurisdiction is everything. (See the owners of Motor Vessel “Lillian S” – Versus - Caltex Oil (Kenya) Ltd [1989] eKLR). Considering all the above, this court is bereft of jurisdiction to issue the orders sought by the applicant and ought to down its tools.

Conclusion and Disposition

  1. By reason of the forgoing, I find that the application herein seeking orders of resentencing after resentencing had already been done by this Court in Misc. Application No. 196 of 2014 is an abuse of the court process as it raises issues which had been substantially litigated and adjudicated upon by this court or which ought to have been raised in the earlier application and the same is rejected.
  2. In the result, the undated notice of Motion application be and is hereby dismissed for want of jurisdiction.

IT IS SO ORDERED ACORDINGLY.

RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS ……13th.…………DAY OF ………………………..…….., 2025

……………………………………………………..

HON. LADY JUSTICE W. M. KAGENDO

(JUDGE)

HIGH COURT OF KENYA AT MOMBASA

(CRIMINAL DIVISION)

In the presence of:

M/s. Maureen, Court Assistant;

Mr. Ngiri……………State Counsel;

………………………………………….…Applicant

    BENSON KIMANI MUNYUA alias DOGO VS The Republic BENSON KIMANI MUNYUA alias DOGO VS The Republic