(ORIGINATING FROM CRIMINAL CASE NO. 831 OF 2016, HCCR. APP NO. 67 OF 2017 AND MISC. APPLICATION NO. E125 OF 2022 BEFORE LADYY JUSTICE A. ONG’INJO)
Introduction
- This Honourable Court is called to determine the undated Notice of Motion application by the Applicant who sought resentencing. The background facts were that he was charged and convicted for the offences of defilement contrary to Section 8(1) as read with 8(2) of the Sexual Offences Act No. 3 of 2006 and sentenced to life imprisonment.
- He relied on the mitigating factors that he was a first time offender, he had undergone rehabilitation while in the penal institution and that at the time of the offence he was 27 years old. He sought for his sentence to be reviewed to 25 years imprisonment as he had a wife and four children and his jobless parents who all depended on him and had been suffering due to his absence.
Analysis and Determination
- 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 As a consequence of this decision, paragraph 6.4-6.7 of the guidelines are no longer applicable.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.””
- 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 conviction and sentence for the offence of Robbery with violence contrary to Section 295 as read with Section 296(2) of the Penal Code.
- 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.
- 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.
- 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.
- 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.
- However, 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).He has already exercised that option and he cannot now have a 3rd bite at the pie.
- 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
- 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. 125 of 2022 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. In the end, 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 …………February……………..…….., 2025
……………………………………………………..
HON. LADY JUSTICE W. M. KAGENDO
(JUDGE)
HIGH COURT OF KENYA AT MOMBASA
(CRIMINAL DIVISION)
In the presence of:
M/s. Bebora, Court Assistant;
……………Mr. Ngiri……………State Counsel;
………………………………………….…Applicant