(Originating from Criminal Case No. 186 of 2016 at the Court of Appeal, Nairobi, HCCR No. 146 of 2013 at the High Court in Nairobi and Criminal Case No. 901 at Limuru Law Court)
RULING
INTRODUCTION
1. This Honourable Court is called to determine the Notice of Motion by the Applicant who sought resentencing. The grounds of which were that the Applicant contended that the twenty-five (25) year sentence imposed by the High Court during resentencing is still harsh and excessive.
2. He urged the court to reconsider the sentence and weigh in the mitigating circumstances.
3. According to him, the sentence was harsh and excessive since it did not reflect the unique circumstances and facts of his case, since at the time of conviction, he was still a minor.
Analysis and Determination
4. The Supreme Court in Francis Karioko Muruatetu & Another – Versus - Republic [2017] eKLR gave the following guidelines regarding mitigating factors applicable in a re-hearing sentence for the conviction of a murder charge thus:
[71]. As a consequence of this decision, paragraphs 6.4-6.7 of the guidelines are no longer applicable. To avoid a lacuna, the following guidelines regarding 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.
5. [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 bound by it. It is the duty of the court to keep abreast of 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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).
13. Considering all the above, this court is bereft of jurisdiction to issue the orders sought by the applicant and ought to down its tools.
14. Additionally, the appellant seems to be forum-shopping. The matter was originally heard in Limuru Law Courts, the first appeal was in the High Court in Nairobi and there was another appeal at the Court of Appeal in Nairobi. It was then brought to the High Court in Voi where it was then transferred to the High Court in Mombasa.
Conclusion and Disposition
15. By reason of the forgoing, I find that the application herein seeking orders of review lacks merit.
16. 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 ……29th…………DAY.
OF ………April………….……., 2025
……………………………………………………..
HON. LADY JUSTICE W. M. KAGENDO
(JUDGE)