1. This is a Ruling over an Application dated 14.8.2023 and filed by the Applicant seeking to review sentence meted out against him by the Court of Appeal in the case of Nairobi, vide CACRA E085 of 2023 (reported as CMM v Republic [2024] KECA 1147 (KLR) .
2. The applicant was charged before the Senior Principal Magistrate’s Court, Kitui, with the offence of incest contrary to Section 20(1) of the Sexual Offences Act (“the Act”). The particulars of the offence were that on diverse dates between 1st September 2012 and 6th October 2012 at an unknown time at Kyamatu village, Kyamatu sub-location, Mwitika location in Kitui County, he intentionally committed an act which caused penetration with NKS, a child aged 11 years, by inserting his penis into her genital organ, namely the vagina, who to his knowledge was his granddaughter.
3. The trial court found that the applicant had committed the offence, convicted him, and sentenced him to life imprisonment. The appellant appealed against both conviction and sentence to the High Court, and on determination of the appeal, the High Court (Mutende J,) dismissed the appeal and upheld both the conviction and sentence on 23rd August 2017.
4. The applicant appealed to the Court of Appeal at Nairobi, vide CACRA E085 of 2023. The Court of Appeal [MSA Makhandia, A Ali-Aroni & JM Mativo, JJA] substituted the charge with defilement and sentenced him to life imprisonment, as follows:
A close look at Section 21 as read with Section 22 of the Act, as argued by the appellant, does not cover the relationship between him and PW1, and to that extent his complaint is justifiable. What it means, is that both the two courts below failed to consider the provision of the law, convicted and sentenced the appellant of a wrong offence. Having said so, we find that there was overwhelming evidence that the appellant defiled PW1, who at the time of the incident was 11 years old, and based on Section 8(1) as read with Section 8(2) of the Act, the appellant is guilty of the offence of defilement.
We turn to the issue of sentence and based on our analysis above, we have to consider if the sentence meted out to the appellant remains lawful, having found that the appellant was convicted of a wrong offence, bearing in mind that this Court can set aside the wrong conviction and substitute the same with a proper one. Section 8(2) of the Act provides that anyone found guilty of having committed the offence of defilement with a child aged 11 years and below is liable to imprisonment for life.
32. In the end having found that the appellant committed the offence of defilement, we set aside the conviction based on the offence of incest and substitute the same with a conviction for the offence of defilement and cognizant of the decision by the Supreme Court in the case of R vs. Joshua Gichuki Maingi; Initiative for Strategic Litigation in Africa (ISLA) & 3 Others (Amicus Curiae) (supra), we uphold the sentence of life imprisonment, which remains lawful for the offence of defilement.
5. The matter came up in the morning for the hearing of the application for review. After perusing the file, I gave directions and heard the parties. It emerged that the Court of Appeal had heard and determined the matter. The Court of Appeal imposed the sentence and convicted the applicant of the offence of defilement. This court and the court below had convicted on incest.
6. The prosecutor submitted that the court was functus officio. The applicant sought mercy and compassion, as well as a fixed-term sentence.
7. Two issues arose, namely whether the court is functus officio and whether it has jurisdiction to revise the sentence imposed by the Court of Appeal. The High Court's revisionary powers are set out in section 362 of the Criminal Procedure Code as follows:
The 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.
8. What the High Court can do under its revision jurisdiction is stated under Section 364 of the Criminal Procedure Code, which states as follows:
(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 section 354, 357 and 358, and may enhance sentence;
(b)In the case of any other order than an order of acquittal, alter or reverse the order.
(2) No order under this section shall be made to the prejudiced of an accused person unless he had had an opportunity of being heard either personally or through an advocate in his own defence. Provided that this subsection shall not apply to an order made where a subordinate court has failed to pass a sentence which it was required to pass under the written law creating the offence concerned.
(3) Where the sentence dealt with under this section has been passed by a Subordinate Court, the High Court shall not inflict a greater punishment for the offence which in the opinion of the High Court the accused has committed than might have been inflicted by the court which imposed the sentence.
(4) Nothing in this section shall be deemed to authorize the High Court to convert a finding of acquittal into one of conviction.(5)When an appeal arises from a finding, sentence or order and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.”
9. The proceedings herein do not arise from a decision of the subordinate court but from that of the Court of Appeal. The Court of Appeal made the substitution. This court cannot, by craft or innovation, revise the Court of Appeal’s decision. In Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] KESC 8 (KLR), the Supreme Court stated as follows:
“This Court dealt with the question of jurisdiction extensively in, In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011 . Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.”
10. The court cannot, by any stretch of the imagination, surmise, hyperbole or conjecture, develop or usurp jurisdiction where there is none. In Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR, Nyarangi JA, as he then was, stated as follows:
With that, I return to the issue of jurisdiction and to the words of Section 20(2)(m) of the 1981 Act. I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. Before I part with this aspect of the appeal, I refer to the following passage which will show that what
I have already said that this is consistent with authority: “By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognisance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics.”
11. The revisionary power of this court also serves a supervisory role, and the court is empowered by Article 165(6) of the Constitution to review a decision of a subordinate court. The relevant provision is as follows:
The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.
12. There is no decision of the subordinate court to be revised. The Court of Appeal delivered the last decision on sentence. This court cannot purport to address whether the sentence can be revised. There is also the question of functus officio. The court cannot supervise a superior court.
13. The question was addressed by Thande, J, in the case of Mureithi v Republic [2025] KEHC 3519 (KLR), as follows:
4. At the very outset, this Court must determine whether it has jurisdiction to entertain the Application before it. The law is that this Court may only exercise that jurisdiction which has been conferred upon it by the Constitution , statute or both. This was succinctly stated by the Supreme Court in the case of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR, as follows:A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, 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. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings.
5.This Court derives its jurisdiction principally from Article 165(3) of the Constitution which confers upon it unlimited original jurisdiction in criminal and civil matters. The provision clearly delineates and demarcates what the Court can and cannot do. The jurisdiction of this Court includes supervisory powers. By dint of Article 165(6) however, this Court cannot supervise superior courts. It provides:
The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.
6.The superior courts in the court system in Kenya are listed in Article 162 (1) of the Constitution , which provides:
The superior courts are the Supreme Court, the Court of Appeal, the High Court and the courts mentioned in clause (2).
7. The Petitioner was convicted and sentenced by this Court. Additionally, the Applicant unsuccessfully appealed to the Court of Appeal, which upheld both the conviction and sentence. What he now seeks is that this Court reviews its own decision and that of the Court of Appeal. While this Court has wide unlimited jurisdiction under Article 165 of the Constitution , it does not have jurisdiction over a superior court.
14. The court delivered a judgment that was set aside by the Court of Appeal on both the conviction and the sentence, and replaced it with the correct charge that was disclosed. The High Court sentence was set aside on the strength of the Supreme Court decision on the nature of sentences under the Sexual Offences Act, which is circumscribed. This offence under section 8(1) and (2) of the Sexual Offences Act provides for a mandatory sentence of life imprisonment.
15. The Court of Appeal relied on the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) , where the Supreme Court, [MK Koome, CJ, MK Ibrahim, SC Wanjala, N Ndungu & I Lenaola, SCJJ] posited as follows:
11. Mandatory sentences and minimum sentences as punishment in law have been commonly prescribed by legislatures worldwide but recently, various apex courts of several countries such as Canada, the USA, Australia, and South Africa as well as the European Court of Human Rights have struck down both mandatory life imprisonment as well as minimum sentences in an effort to move towards the approach of proportionality in punishment based on the actual crime committed
12. Before Kenyan courts could determine whether or not the prevailing trends and decisions were persuasive, there ought to be a proper case filed, presented and fully argued before the High Court and escalated through the appropriate channels on the constitutional validity or otherwise of minimum sentences or mandatory sentences other than for the offence of murder. That was the Supreme Court’s approach and direction in Muruatetu , which had to remain binding to all courts below.
13. The Court of Appeal failed to identify with precision the provisions of the Sexual Offences Act it was declaring unconstitutional, left its declaration of unconstitutionality ambiguous, vague and bereft of specificity. That approach was problematic in the realm of criminal law because such a declaration would have grave effect on other convicted and sentenced persons who were charged with the same offence. Inconsistency in sentences for the same offences would also create mistrust and unfairness in the criminal justice system. Yet the fundamental issue of the constitutionality of the minimum sentence may not have been properly filed and fully argued before the superior courts below.
16. Further, the same position was reiterated by the Supreme Court in its decision in Republic v Manyeso [2025] KESC 16 (KLR) , where is stated as follows:
Paragraphs 11 to 14 of the Muruatetu directions are very clear that the decision in the Muruatetu case did not invalidate mandatory sentences or minimum sentences in the Penal Code , Sexual Offences Act or any other statute. Further, that the Muruatetu case cannot be said to be the authority for stating that all provisions of the law prescribing minimum sentences are inconsistent with the Constitution . Paragraphs 93 to 97 of the Muruatetu decision are also explicit that it is not for the court to define what constitutes a life sentence. While we appreciated that a life sentence could mean a certain minimum or maximum time to be set by a judicial officer, this court made the following recommendations to the Attorney General to develop legislation on what constitutes a life sentence:
94. We recognize that although the Judiciary released elaborate and comprehensive Sentencing Policy Guidelines in 2016, there are no specific provisions for the sentence of life imprisonment, because it is an indeterminate sentence. Nevertheless, we are in agreement with the High Court decision in Jackson Wangui, supra, which found that it is not for the court to define what constitutes a life sentence or what number of years must first be served by a prisoner on life sentence before they are considered on parole. This is a function within the realm of the Legislature.
95.We also acknowledge that in Kenya and internationally, sentencing should not only be used for the purpose of retribution, it is also for the rehabilitation of the prisoner as well as for the protection of civilians who may be harmed by some prisoners. We find the comparative jurisprudence with regard to the indeterminate life sentence is compelling. We find that a life sentence should not necessarily mean the natural life of the prisoner; it could also mean a certain minimum or maximum time to be set by the relevant judicial officer along established parameters of criminal responsibility, retribution, rehabilitation and recidivism.
96.We therefore recommend that the Attorney General and Parliament commence an enquiry and develop legislation on the definition of ‘what constitutes a life sentence’; this may include a minimum number of years to be served before a prisoner is considered for parole or remission, or provision for prisoners under specific circumstances to serve whole life sentences. This will be in tandem with the objectives of sentencing.
17. The next question concerns functus officio. This was discussed in the case of Murgani v Kenya Revenue Authority (Civil Application 4 of 2014) [2014] KESC 2 (KLR) (19 December 2014) (Ruling), where the Supreme Court [PK Tunoi, MK Ibrahim, JB Ojwang, SC Wanjala & N Ndungu, SCJJ] stated as follows:
It is a general principle of law that a Court after passing Judgment becomes functus officio and cannot revisit the Judgment on the merits, or purport to exercise a judicial power over the same matter, save as provided by law. In Lakhamshi Brothers v. Raja & Sons [1966] EA 313 the then Court of Appeal held as follows:
“This court is now the final Court of Appeal and when this court delivers its judgement, that judgement is, so far as the particular proceedings are concerned, the end of the litigation. It determines in respect of the parties to the particular proceedings their final legal position, subject as I have said to the limited application of the slip rule.”
18. Functus officio was also addressed in the case of Ochanda (Suing on his Behalf and on Behalf of 996 Former Employees of Telkom Limited) v Telkom Kenya Limited (Motion 24 of 2014) [2014] KESC 7 (KLR) (25 November 2014) (Ruling), where the Court of Appeal [EM Githinji, W Karanja & Po Kiage, JJ] held as follows:
21. Functus officio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon. It is a doctrine that has been recognised in the common law tradition from as long ago as the latter part of the 19th Century. In the Canadian case of Chandler Vs Alberta Association of Architects [1989] 2 S.C.R. 848, Sopinka J. traced the origins of the doctrines as follows (at p. 860);
22.The general rule that a final decision of a court cannot be re-opened derives from the decision of the English Court of Appeal In re St. Nazaire Co., (1879), 12 Ch. D. 88. The basis for it was that the power to rehear was transferred by the Judicature Acts to the appellate division. The rule applied only after the formal judgment had been drawn up, issued and entered, and was subject to two exceptions:
23. Where there had been a slip in drawing it up, and where there was an error in expressing the manifest intention of the court. See Paper Machinery Ltd. vs. J.O. Rose Engineering Corp., [1934] S.C.R. 186”
The Supreme Court in Raila Odinga v IEBC cited with approval an excerpt from an article by Daniel Malan Pretorius entitled, “The Origins of the Functus Officio Doctrine, with Special Reference to its Application in Administrative Law” (2005) 122 SALJ 832 in which the learned author stated:
“The functus 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...The [principle] is that once such a decision has been given, it is (subject to any right of appeal to a superior body or functionary) final and conclusive. Such a decision cannot be reviewed or varied by the decision maker.”
24. The doctrine is not to be understood to bar any engagement by a court with a case that it has already decided or pronounced itself on. What it does bar is a merit-based decisional re-engagement with the case once final judgment has been entered and a decree thereon issued. There do therefore exist certain exceptions, and these have been captured thus in Jersey Evening Post Ltd Vs Ai Thani [2002] JLR 542 at 550, also cited and applied by the Supreme Court;
19. The Supreme Court decision in Odinga v Independent Electoral & Boundaries Commission & 3 others [2013] KESC 8 (KLR) cited with approval an excerpt from an article by Daniel Malan Pretorius entitled “The Origins of the Functus Officio Doctrine, with Special Reference to its Application in Administrative Law” (2005) 122 SALJ 832, which reads:
“The functus 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...The [principle] is that once such a decision has been given, it is (subject to any right of appeal to a superior body or functionary) final and conclusive. Such a decision cannot be reviewed or varied by the decision maker.”
20. The High Court decided the matter on appeal. The powers of this court in relation to the lower court matter were exhausted. Once a superior court overrules a court, it cannot overturn the Court of Appeal. The court's decisional powers were exhausted, and it became functus officio. Consequently, the court has no jurisdiction to hear this matter. The application is hereby struck out.
Determination
21. In the upshot, I make the following orders: -
a. The Application is not merited and is hereby struck out.
b. The file is closed.
DELIVERED, DATED and SIGNED at NYERI this 1 st day of September, the year of our Lord Two Thousand and Twenty - Six. Ruling delivered through Microsoft Teams Online Platform.
In the presence of:-
pro se , Applicant
Ms Njihia for the Respondent
Court Assistant- Allan
2. The applicant was charged before the Senior Principal Magistrate’s Court, Kitui, with the offence of incest contrary to Section 20(1) of the Sexual Offences Act (“the Act”). The particulars of the offence were that on diverse dates between 1st September 2012 and 6th October 2012 at an unknown time at Kyamatu village, Kyamatu sub-location, Mwitika location in Kitui County, he intentionally committed an act which caused penetration with NKS, a child aged 11 years, by inserting his penis into her genital organ, namely the vagina, who to his knowledge was his granddaughter.
3. The trial court found that the applicant had committed the offence, convicted him, and sentenced him to life imprisonment. The appellant appealed against both conviction and sentence to the High Court, and on determination of the appeal, the High Court (Mutende J,) dismissed the appeal and upheld both the conviction and sentence on 23rd August 2017.
4. The applicant appealed to the Court of Appeal at Nairobi, vide CACRA E085 of 2023. The Court of Appeal [MSA Makhandia, A Ali-Aroni & JM Mativo, JJA] substituted the charge with defilement and sentenced him to life imprisonment, as follows:
A close look at Section 21 as read with Section 22 of the Act, as argued by the appellant, does not cover the relationship between him and PW1, and to that extent his complaint is justifiable. What it means, is that both the two courts below failed to consider the provision of the law, convicted and sentenced the appellant of a wrong offence. Having said so, we find that there was overwhelming evidence that the appellant defiled PW1, who at the time of the incident was 11 years old, and based on Section 8(1) as read with Section 8(2) of the Act, the appellant is guilty of the offence of defilement.
We turn to the issue of sentence and based on our analysis above, we have to consider if the sentence meted out to the appellant remains lawful, having found that the appellant was convicted of a wrong offence, bearing in mind that this Court can set aside the wrong conviction and substitute the same with a proper one. Section 8(2) of the Act provides that anyone found guilty of having committed the offence of defilement with a child aged 11 years and below is liable to imprisonment for life.
32. In the end having found that the appellant committed the offence of defilement, we set aside the conviction based on the offence of incest and substitute the same with a conviction for the offence of defilement and cognizant of the decision by the Supreme Court in the case of R vs. Joshua Gichuki Maingi; Initiative for Strategic Litigation in Africa (ISLA) & 3 Others (Amicus Curiae) (supra), we uphold the sentence of life imprisonment, which remains lawful for the offence of defilement.
5. The matter came up in the morning for the hearing of the application for review. After perusing the file, I gave directions and heard the parties. It emerged that the Court of Appeal had heard and determined the matter. The Court of Appeal imposed the sentence and convicted the applicant of the offence of defilement. This court and the court below had convicted on incest.
6. The prosecutor submitted that the court was functus officio. The applicant sought mercy and compassion, as well as a fixed-term sentence.
7. Two issues arose, namely whether the court is functus officio and whether it has jurisdiction to revise the sentence imposed by the Court of Appeal. The High Court's revisionary powers are set out in section 362 of the Criminal Procedure Code as follows:
The 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.
8. What the High Court can do under its revision jurisdiction is stated under Section 364 of the Criminal Procedure Code, which states as follows:
(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 section 354, 357 and 358, and may enhance sentence;
(b)In the case of any other order than an order of acquittal, alter or reverse the order.
(2) No order under this section shall be made to the prejudiced of an accused person unless he had had an opportunity of being heard either personally or through an advocate in his own defence. Provided that this subsection shall not apply to an order made where a subordinate court has failed to pass a sentence which it was required to pass under the written law creating the offence concerned.
(3) Where the sentence dealt with under this section has been passed by a Subordinate Court, the High Court shall not inflict a greater punishment for the offence which in the opinion of the High Court the accused has committed than might have been inflicted by the court which imposed the sentence.
(4) Nothing in this section shall be deemed to authorize the High Court to convert a finding of acquittal into one of conviction.(5)When an appeal arises from a finding, sentence or order and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.”
9. The proceedings herein do not arise from a decision of the subordinate court but from that of the Court of Appeal. The Court of Appeal made the substitution. This court cannot, by craft or innovation, revise the Court of Appeal’s decision. In Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] KESC 8 (KLR), the Supreme Court stated as follows:
“This Court dealt with the question of jurisdiction extensively in, In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011 . Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.”
10. The court cannot, by any stretch of the imagination, surmise, hyperbole or conjecture, develop or usurp jurisdiction where there is none. In Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR, Nyarangi JA, as he then was, stated as follows:
With that, I return to the issue of jurisdiction and to the words of Section 20(2)(m) of the 1981 Act. I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. Before I part with this aspect of the appeal, I refer to the following passage which will show that what
I have already said that this is consistent with authority: “By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognisance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics.”
11. The revisionary power of this court also serves a supervisory role, and the court is empowered by Article 165(6) of the Constitution to review a decision of a subordinate court. The relevant provision is as follows:
The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.
12. There is no decision of the subordinate court to be revised. The Court of Appeal delivered the last decision on sentence. This court cannot purport to address whether the sentence can be revised. There is also the question of functus officio. The court cannot supervise a superior court.
13. The question was addressed by Thande, J, in the case of Mureithi v Republic [2025] KEHC 3519 (KLR), as follows:
4. At the very outset, this Court must determine whether it has jurisdiction to entertain the Application before it. The law is that this Court may only exercise that jurisdiction which has been conferred upon it by the Constitution , statute or both. This was succinctly stated by the Supreme Court in the case of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR, as follows:A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, 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. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings.
5.This Court derives its jurisdiction principally from Article 165(3) of the Constitution which confers upon it unlimited original jurisdiction in criminal and civil matters. The provision clearly delineates and demarcates what the Court can and cannot do. The jurisdiction of this Court includes supervisory powers. By dint of Article 165(6) however, this Court cannot supervise superior courts. It provides:
The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.
6.The superior courts in the court system in Kenya are listed in Article 162 (1) of the Constitution , which provides:
The superior courts are the Supreme Court, the Court of Appeal, the High Court and the courts mentioned in clause (2).
7. The Petitioner was convicted and sentenced by this Court. Additionally, the Applicant unsuccessfully appealed to the Court of Appeal, which upheld both the conviction and sentence. What he now seeks is that this Court reviews its own decision and that of the Court of Appeal. While this Court has wide unlimited jurisdiction under Article 165 of the Constitution , it does not have jurisdiction over a superior court.
14. The court delivered a judgment that was set aside by the Court of Appeal on both the conviction and the sentence, and replaced it with the correct charge that was disclosed. The High Court sentence was set aside on the strength of the Supreme Court decision on the nature of sentences under the Sexual Offences Act, which is circumscribed. This offence under section 8(1) and (2) of the Sexual Offences Act provides for a mandatory sentence of life imprisonment.
15. The Court of Appeal relied on the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) , where the Supreme Court, [MK Koome, CJ, MK Ibrahim, SC Wanjala, N Ndungu & I Lenaola, SCJJ] posited as follows:
11. Mandatory sentences and minimum sentences as punishment in law have been commonly prescribed by legislatures worldwide but recently, various apex courts of several countries such as Canada, the USA, Australia, and South Africa as well as the European Court of Human Rights have struck down both mandatory life imprisonment as well as minimum sentences in an effort to move towards the approach of proportionality in punishment based on the actual crime committed
12. Before Kenyan courts could determine whether or not the prevailing trends and decisions were persuasive, there ought to be a proper case filed, presented and fully argued before the High Court and escalated through the appropriate channels on the constitutional validity or otherwise of minimum sentences or mandatory sentences other than for the offence of murder. That was the Supreme Court’s approach and direction in Muruatetu , which had to remain binding to all courts below.
13. The Court of Appeal failed to identify with precision the provisions of the Sexual Offences Act it was declaring unconstitutional, left its declaration of unconstitutionality ambiguous, vague and bereft of specificity. That approach was problematic in the realm of criminal law because such a declaration would have grave effect on other convicted and sentenced persons who were charged with the same offence. Inconsistency in sentences for the same offences would also create mistrust and unfairness in the criminal justice system. Yet the fundamental issue of the constitutionality of the minimum sentence may not have been properly filed and fully argued before the superior courts below.
16. Further, the same position was reiterated by the Supreme Court in its decision in Republic v Manyeso [2025] KESC 16 (KLR) , where is stated as follows:
Paragraphs 11 to 14 of the Muruatetu directions are very clear that the decision in the Muruatetu case did not invalidate mandatory sentences or minimum sentences in the Penal Code , Sexual Offences Act or any other statute. Further, that the Muruatetu case cannot be said to be the authority for stating that all provisions of the law prescribing minimum sentences are inconsistent with the Constitution . Paragraphs 93 to 97 of the Muruatetu decision are also explicit that it is not for the court to define what constitutes a life sentence. While we appreciated that a life sentence could mean a certain minimum or maximum time to be set by a judicial officer, this court made the following recommendations to the Attorney General to develop legislation on what constitutes a life sentence:
94. We recognize that although the Judiciary released elaborate and comprehensive Sentencing Policy Guidelines in 2016, there are no specific provisions for the sentence of life imprisonment, because it is an indeterminate sentence. Nevertheless, we are in agreement with the High Court decision in Jackson Wangui, supra, which found that it is not for the court to define what constitutes a life sentence or what number of years must first be served by a prisoner on life sentence before they are considered on parole. This is a function within the realm of the Legislature.
95.We also acknowledge that in Kenya and internationally, sentencing should not only be used for the purpose of retribution, it is also for the rehabilitation of the prisoner as well as for the protection of civilians who may be harmed by some prisoners. We find the comparative jurisprudence with regard to the indeterminate life sentence is compelling. We find that a life sentence should not necessarily mean the natural life of the prisoner; it could also mean a certain minimum or maximum time to be set by the relevant judicial officer along established parameters of criminal responsibility, retribution, rehabilitation and recidivism.
96.We therefore recommend that the Attorney General and Parliament commence an enquiry and develop legislation on the definition of ‘what constitutes a life sentence’; this may include a minimum number of years to be served before a prisoner is considered for parole or remission, or provision for prisoners under specific circumstances to serve whole life sentences. This will be in tandem with the objectives of sentencing.
17. The next question concerns functus officio. This was discussed in the case of Murgani v Kenya Revenue Authority (Civil Application 4 of 2014) [2014] KESC 2 (KLR) (19 December 2014) (Ruling), where the Supreme Court [PK Tunoi, MK Ibrahim, JB Ojwang, SC Wanjala & N Ndungu, SCJJ] stated as follows:
It is a general principle of law that a Court after passing Judgment becomes functus officio and cannot revisit the Judgment on the merits, or purport to exercise a judicial power over the same matter, save as provided by law. In Lakhamshi Brothers v. Raja & Sons [1966] EA 313 the then Court of Appeal held as follows:
“This court is now the final Court of Appeal and when this court delivers its judgement, that judgement is, so far as the particular proceedings are concerned, the end of the litigation. It determines in respect of the parties to the particular proceedings their final legal position, subject as I have said to the limited application of the slip rule.”
18. Functus officio was also addressed in the case of Ochanda (Suing on his Behalf and on Behalf of 996 Former Employees of Telkom Limited) v Telkom Kenya Limited (Motion 24 of 2014) [2014] KESC 7 (KLR) (25 November 2014) (Ruling), where the Court of Appeal [EM Githinji, W Karanja & Po Kiage, JJ] held as follows:
21. Functus officio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon. It is a doctrine that has been recognised in the common law tradition from as long ago as the latter part of the 19th Century. In the Canadian case of Chandler Vs Alberta Association of Architects [1989] 2 S.C.R. 848, Sopinka J. traced the origins of the doctrines as follows (at p. 860);
22.The general rule that a final decision of a court cannot be re-opened derives from the decision of the English Court of Appeal In re St. Nazaire Co., (1879), 12 Ch. D. 88. The basis for it was that the power to rehear was transferred by the Judicature Acts to the appellate division. The rule applied only after the formal judgment had been drawn up, issued and entered, and was subject to two exceptions:
23. Where there had been a slip in drawing it up, and where there was an error in expressing the manifest intention of the court. See Paper Machinery Ltd. vs. J.O. Rose Engineering Corp., [1934] S.C.R. 186”
The Supreme Court in Raila Odinga v IEBC cited with approval an excerpt from an article by Daniel Malan Pretorius entitled, “The Origins of the Functus Officio Doctrine, with Special Reference to its Application in Administrative Law” (2005) 122 SALJ 832 in which the learned author stated:
“The functus 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...The [principle] is that once such a decision has been given, it is (subject to any right of appeal to a superior body or functionary) final and conclusive. Such a decision cannot be reviewed or varied by the decision maker.”
24. The doctrine is not to be understood to bar any engagement by a court with a case that it has already decided or pronounced itself on. What it does bar is a merit-based decisional re-engagement with the case once final judgment has been entered and a decree thereon issued. There do therefore exist certain exceptions, and these have been captured thus in Jersey Evening Post Ltd Vs Ai Thani [2002] JLR 542 at 550, also cited and applied by the Supreme Court;
19. The Supreme Court decision in Odinga v Independent Electoral & Boundaries Commission & 3 others [2013] KESC 8 (KLR) cited with approval an excerpt from an article by Daniel Malan Pretorius entitled “The Origins of the Functus Officio Doctrine, with Special Reference to its Application in Administrative Law” (2005) 122 SALJ 832, which reads:
“The functus 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...The [principle] is that once such a decision has been given, it is (subject to any right of appeal to a superior body or functionary) final and conclusive. Such a decision cannot be reviewed or varied by the decision maker.”
20. The High Court decided the matter on appeal. The powers of this court in relation to the lower court matter were exhausted. Once a superior court overrules a court, it cannot overturn the Court of Appeal. The court's decisional powers were exhausted, and it became functus officio. Consequently, the court has no jurisdiction to hear this matter. The application is hereby struck out.
Determination
21. In the upshot, I make the following orders: -
a. The Application is not merited and is hereby struck out.
b. The file is closed.
DELIVERED, DATED and SIGNED at NYERI this 1 st day of September, the year of our Lord Two Thousand and Twenty - Six. Ruling delivered through Microsoft Teams Online Platform.
In the presence of:-
pro se , Applicant
Ms Njihia for the Respondent
Court Assistant- Allan