HASSAN KAHINDI KATANA alias KINUNGI AND GABRIEL MWAMBOGO TUVA alias JIBRIL VS The Republic

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MALINDI

PETITION NO. E004 OF 2023

HASSA KAHINDI KATAMA

GABRIEL MWAMBOGO TUVA ………….……….………………………........PETITIONERS

VERSUS

REPUBLIC ………………………........…………….…….……………………….RESPONDENT  

JUDGMENT

1. The facts herein as can be gleaned from the record are that the Petitioners were charged and convicted of the offence of robbery with violence contrary to Section 295 as read with Section 296(2) of the Penal Code and were sentenced to death. Being dissatisfied with the decision, they filed Criminal Appeals Nos. 33 and 34 of 2015, which appeals were dismissed on 31.8.16. They then proceeded to file Criminal Appeal No. 8 of 2019 before the Court of Appeal which suffered the same fate.
2. The Petitioners have returned to this Court by a Petition filed on 21.6.23, seeking review of the sentence imposed upon them. They urged that the mandatory death sentence denied the trial court of its original jurisdiction in sentencing thereby rendering it powerless in the face of obvious injustice. They cited the case of Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) (Petition 15 & 16 of 2015 (Consolidated)) [2017] KESC 2 (KLR) (14 December 2017) (Judgment) where the Supreme Court declared that mandatory death sentence was unconstitutional. They also relied on the case of William Okungu Kittiny v Republic [2018] eKLR where the Court of Appeal held that to the extent that Section 296(2) and 297(2) of the Penal Code provides for mandatory death sentence the Sections are inconsistent with Constitution.
3. They pleaded that they have served for a period of more than 8 years from 24.3.14 which can be considered as adequate punishment. They further stated that they are now peaceful and law-abiding citizens and that the reform programs undertaken in prison will assist them reintegrate into society. As such, they are eligible for parole. They relied on Section 137 of the Criminal Procedure Code as well as Article 27 of the Constitution which prohibits discrimination.
4. The Petition is opposed by the Respondent vide a replying affidavit sworn on 12.1.24 by Joseph Mwangi, prosecution counsel. The Respondent averred that the Petitioners have admitted that they appealed to this Court and the Court of Appeal without success. Further that the sentence was determined as a matter of fact by the trial court which heard the matter and convicted and sentenced the Petitioners. The Respondent contended that the sentence of life imprisonment is not unconstitutional as claimed by the Petitioners. Further that Kenyan law does not provide for parole. Additionally, that the authorities cited are not applicable since death sentences were commuted to life imprisonment. Further that litigation must come to an end and that allowing the Petition would open the flood gates as every imprisoned convict shall approach the Court with similar applications leading to endless litigation.
5. It is common ground that this matter has been litigated in this Court and the Court of Appeal. Accordingly, it is necessary for this Court to determine is whether it has the jurisdiction to entertain the Petition. The law, is that this Court may only exercise that jurisdiction which has been conferred upon it by the Constitution, statute or both. In the case of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR the Supreme Court succinctly stated:

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.

1. This Court derives its jurisdiction principally form Article 165(3) of the Constitution which confers upon this Court 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.

1. 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).

1. As indicated herein, the Petitioners have unsuccessfully appealed to both this Court and the Court of Appeal. What they now seek is that this Court reviews its own decision and that of the Court of Appeal, a jurisdiction it does not have.
2. In the case of John Kagunda Kariuki v Republic [2019] eKLR, Ngugi, J, (as he then was) stated and I concur:

10.     In the present case, the Applicant’s appeal has already been heard by the High Court.  He cannot return to the High Court for a review of the sentence imposed.  He is at liberty to make an argument for reduced sentence at the Court of Appeal.

1. At the helm of the Court system in Kenya is the Supreme Court followed by the Court of Appeal. Following the dismissal of their appeal before this Court, the petitioners moved to the Court of Appeal which also dismissed their appeal. That decision of the Court of Appeal is binding on this Court. In light of this, to entertain this matter in respect of which the Court of Appeal has pronounced itself, no matter how compelling the arguments placed before it, would be to violate the constitutional judicial hierarchical norm. In this regard, I am guided by the holding in the case of Kenya Hotel Properties Limited v Attorney General & 5 others [2020] eKLR, where the Court of Appeal stated:

As we stated at the beginning of this judgment this appeal is disturbing. The multiplicity of endless proceedings around the same dispute does not bode well for the administration of justice…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.

1. This finding of the Court of Appeal was affirmed by the Supreme Court in Kenya Hotel Properties Limited v Attorney General & 5 others (Petition 16 of 2020) [2022] KESC 62 (KLR) (Civ) (7 October 2022) (Judgment), which stated:
2. We need to emphasize and reiterate that Mutunga CJ did not in any way state that the High Court may in any way, purport to overturn or order final decisions issued by higher courts than itself to start de novo, especially on appeals that have been finally concluded by the highest court at the time. Furthermore, the concurrence by Mutunga SCJ cannot override the judgment by the majority, despite what the appellant chooses to submit. As was thus rightly noted by the High Court and the Court of Appeal, the rule of thumb is that superior courts cannot grant orders to reopen or review decisions of their peers of equal and competent jurisdiction much less those court higher than themselves.

1. The Petitioners’ appeals were heard and determined by this Court and the Court of Appeal, a fact that they admit. By dint of Article 165(6), this Court lacks the jurisdiction to reopen the matter to relook at their sentence that was upheld by the 2 superior courts.
2. In light of the foregoing, I find that the Petition filed on 21.6.23 is incompetent for want of jurisdiction, and the same is hereby struck out.

DATED, SIGNED and DELIVERED in MALINDI this 27^th day of September 2024

_____________________

M. THANDE 

JUDGE