REPUBLC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CRIMINAL MISCELLANEOUS APPLICATION NO. E066 OF 2024
JOHN MUTUNGA MUENI .....................................................................APPLICANT
-VERSUS-
REPUBLIC ........................................................................................RESPONDENT
RULING
Background
1. The Applicant was charged in Count I with Robbery with Violence contrary to Section 295 as read with section 296(2) of the Penal code. The particulars are that on the 26th day of January 2017 at Kwa Mwaura Trading centre Kyanzavi location, Matungulu sub-county within Machakos County the Applicant jointly with others not before court while armed with crude weapons namely panga iron bar and sword robbed one Jones Wambua Mbithi unknown amount of money, DVD player, mobile phones make Samsung and Nokia 1100 all valued at Kshs.20,800/= and at the time of such robbery fatally injured the said Jones Wambua Mbithi.
2. In Count Il the Applicant faced the charge of Handling Suspected Stolen Property contrary to section 322(1) as read with section 322(2) of the Penal Code. The particulars are that on 26th day of January 2017 at Kwa Mwaura market Kyanzavi location in Matungulu sub county he received and retained two mobile phones make Samsung and Nokia 1100 valued at Kshs.11,000/= knowing or having reason to believe it to be stolen property.
3. The Applicant denied the charges and the matter was set down for hearing. The Prosecution called 10 witnesses to prove its case. The Applicant was convicted and sentenced to serve life imprisonment as provided by law.
4. Being dissatisfied with the conviction and sentence, the Applicant herein filed a first appeal at the High Court in Machakos in Criminal Appeal No. 78 of 2019. The appeal was heard and succeeded on sentence. Justice Odunga (as he was then) set aside the life sentence imposed upon the Applicant and substituted it to 40 years imprisonment to run from the 27th February 2017.
The application
5. The Applicant has thus filed the present application dated 4th June 2024 together with a supporting affidavit of even date seeking review orders in respect to sentence. In the application, he states that he does not intend to appeal to the Court of Appeal.
6. The Respondent/State did not file a response to the application but instead requested that the Trial Court, the High Court Appeal and the Court of Appeal judgments be availed to the court and to them for perusal and consideration on the Applicant’s application herein.
7. A look at the record shows that copies of the judgements in High Court Criminal Appeal No. 78 of 2019 and the Trial Court case No. 145 of 2017 were availed to court. The Applicant stated that he did not wish to file a second appeal to the Court of Appeal.
Submissions
8. The application was directed to be canvassed by way of written submissions. Both parties complied, the applicant’s submissions are dated 11/10/2024 whilst the Respondent’s submissions are dated 16/01/2025.
9. The Applicant was explicit that the review is confined to the sentence imposed on him, and that it is premised on the grounds and mitigating factors set out in his application. The Applicant submits that the 40 years imprisonment imposed on him is more than what translates to life imprisonment and by dint of this the applicant feels that he is serving a sentence longer than life imprisonment based on the current jurisprudence on life imprisonment. The Applicant urges this court to be pleased to invoke Article 27 of the constitution and award him with a sentence that will be in line with the current jurisprudence and judicial position on sentencing.
Lastly, the applicant further implores this court to take into account that he is a first-time offender who deserves a second chance and that he undertakes not to engage in any criminal activity and promises to be a law-abiding citizen, and has embraced prison reforms and rehabilitation programs.
10. Learned counsel for the Respondent, Ms. Agatha Abang, opposed the application. In her submissions, she argued that this honourable court has no jurisdiction to hear this instant application. The Court which heard the first appeal is a court of concurrent jurisdiction as this honourable court. She cited the case of Okeno vs Republic (1972) EA 32 where the Court of Appeal for Eastern Africa stated that:
"...An appellant on afirst appeal is entitled to expect the evidence as a whole to be subjected to a flesh and exhaustive examination (Pandya V R 1975) E.A 336 and to the appellant court's own decision on the evidence.st appellant court must itself weigh conflicting evidence and draw its own conclusion (Shantilal M. Ruwala V. R [1957] E. A 570). It is not the junction of a first appellate court merely to scrutinise the evidence to see if there was some evidence to support the lower court's finding and conclusions, it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate 's findings should be supported. In doing so, it should make allowance for the fact that the trial has had the advantage of hearing and seeing the witnesses”.
11. The Respondent submitted that the High Court that heard the first appeal fully analysed the evidence and arrived in its own decision. The High Court dismissed the appeal on conviction but the appeal on sentence succeeded and the sentence was reduced from life imprisonment to 40 years imprisonment.
12. That the Applicant is misguided on the Muruatetu decision as the Supreme Court, the Apex Court of the land, in the Muruatetu Guidelines clarified that it relates to sentences under section 203 and 204 of the Penal Code which are murder cases only. The Applicant herein was charged with robbery with violence under section 295 as read with section 296 (2) of the Penal Code. The Muruatetu Guidelines do not in any way apply to robbery with violence cases when it comes to resentencing as pleaded by the Applicant.
13. The Respondent set out the Muruatetu Guidelines which provide as follows:
i. The decision of Muruatetu and these guidelines apply only in respect to sentences of murder under Sections 203 and 204 of the Penal Code;
ii. The Judiciary Sentencing Policy Guidelines to be revised in tandem with the new jurisprudence enunciated in Muruatetu;
iii. All offenders who have been subject to the mandatory death penalty and desire to be heard on sentence will be entitled to re-sentencing hearing.
iv. Where an appeal is pending before the Court of Appeal, the High Court will entertain an application for re-sentencing upon being satisfied that the appeal has been withdrawn.
v. In re-sentencing hearing, the court must record the prosecution's and the appellant's submissions under Section 329 of the Criminal Procedure Code, as well as those of the victims before deciding on the suitable sentence.
vi. An application for re-sentencing arising from a trial before the High Court can only be entertained by the High Court, which has jurisdiction to do so and not the subordinate court.
vii. In re-hearing sentence for the charge of murder, both aggravating and mitigating factors such as the following, will guide the court;
(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) The manner in which the offence was committed on the victim;
(g) The physical and psychological effect of the offence on the victim's family;
(h) Remorsefulness of the offender;
(i) The possibility of reform and social re-adaptation of the offender;
(j) Any other factor that the Court considers relevant.
viii. Where the appellant has lodged an appeal against sentence alone, the appellate court will proceed to receive submissions on re-sentencing.
ix. These guidelines will be followed by the High Court and the Court of Appeal in ongoing murder trials and appeals. They will also apply to sentences imposed under Section 204 of the Penal Code before the decision in Muruatetu.
14. The Respondent submitted that the Supreme Court directives are binding on all courts unless the Supreme Court is properly moved as it was in the Muruatetu case.
15. That the Applicant seeks this honourable court to consider his age as a mitigating factor but failed to place anything before this court to indicate that his age poses an issue in serving his sentence. The Applicant's sentence was reduced from life sentence to 40 years imprisonment by Odunga J (as he was then). In reducing this sentence, the learned judge took all matters into consideration. The Respondent submitted that the sentence was lenient under the circumstance. A life was lost in the course of the robbery which was undertaken with crude weapons. The Respondent urged this court to uphold the said sentence as ordered by Justice Odunga (as he was then).
Analysis and Determination
16. I have given careful consideration to the application and the parties’ rival submissions thereto.
17. Accordingly, I have perused the appeal judgment before this court in Machakos High Court Appeal No. 78 of 2019.
18. There is no indication that the Applicant filed a second appeal to the Court of Appeal. He has now applied to this High Court seeking further review or resentencing.
19. In my considered view, the Applicant ought to have appealed against the appeal judgment and/or sentence to the Court of Appeal as this court became functus officio once the High Court delivered the judgment subject of the application herein. The Court of Appeal has the jurisdiction over the same in exercise of its appellate jurisdiction under Article 164(3) of the Constitution and Section 379(1) of the Criminal Procedure Code.
20. I have said enough to demonstrate that this court does not have jurisdiction to entertain the instant application. The court therefore downs its tools (See the owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR).
21. In consideration of the decision of Supreme Court in the Muruatetu’s Case and in consideration of the minimum sentence set by the Sexual Offence Act and in consideration of the applicant’s application, the sentence of 20 years imprisonment is legal and lawful.
22. It is trite law that sentence review, even on appeal, ought not to be easily done; and that certain factors must be present to warrant such intervention. Some of these factors were discussed in the case of Ogalo s/o Owuora v Republic [1954] 21 EACA 270, as follows:
“…The court does not alter a sentence on the mere ground than if the member of the court had been trying the appellant, they might have passed a somewhat different sentence and it will not ordinarily interfere with the discretion exercised by a trial judge unless as was said in James v Republic [1950] 18 EACA 147, it is evident that the judge has acted upon some wrong principle or overlooked some material factor. To this we would also add a third criterion namely that the sentence is manifestly excessive in view of the circumstances of the case.”
23. Similarly, in Bernard Kimani Gacheru v Republic [2002] eKLR, the Court of Appeal restated that:
“It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor or took into account some wrong material, or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist”.
24. In this instance, it is common ground that the sentence imposed by the subordinate court has already been reconsidered on appeal and dismissed by a court of concurrent jurisdiction. Accordingly, the only avenue open for the applicant was to appeal the decision to the Court of Appeal. The question of further consideration by this court cannot arise. In this connection, I agree entirely with the expressions of Hon. Aburili, J. in Constitutional Petition No. 5 of 2018 Daniel Otieno Oracha v Republic [2019] eKLR, that:
“The law abhors the practice of a judge sitting to review a judgment or decision of another judge of concurrent jurisdiction. Reduction of sentence could only be considered by the Court of Appeal or if this court was sitting on appeal of a judgment of the subordinate court or if the petitioner was seeking for resentence after exhausting appeal mechanisms and not otherwise”.
25. The cited judgment of Hon. Aburili, J made in accordance with the law has not been challenged. This court cannot sit on appeal of its own judgment or of court of concurrent competent jurisdiction when the Applicant had an opportunity to ventilate his grievance before the Court of Appeal even if it was to challenge sentence alone.
26. Cases ought to be handled procedurally in the right forum. This is because the rule of the thumb 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 and that matters falling under the exclusive jurisdiction of Supreme Court under Article 163(3) cannot be dealt with by the High Court.
27. Therefore, the applicant’s prayer for his sentence to be reviewed further and be substituted with non-custodial sentence is indeed misconceived and I so find. In the result, the application for sentence review is hereby dismissed for want of jurisdiction.
28. Orders accordingly. File closed.
RULING WRITTEN, DATED & SIGNED AT MACHAKOS THIS 27TH MAY 2025
NOEL I. ADAGI
JUDGE
DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 27TH MAY 2025
In the presence of:
At Kamiti Max Prison........ for Appellant
Ms Agatha............... for Respondent
Milly.................. Court Assistant
IN THE HIGH COURT OF KENYA AT MACHAKOS
CRIMINAL MISCELLANEOUS APPLICATION NO. E066 OF 2024
JOHN MUTUNGA MUENI .....................................................................APPLICANT
-VERSUS-
REPUBLIC ........................................................................................RESPONDENT
RULING
Background
1. The Applicant was charged in Count I with Robbery with Violence contrary to Section 295 as read with section 296(2) of the Penal code. The particulars are that on the 26th day of January 2017 at Kwa Mwaura Trading centre Kyanzavi location, Matungulu sub-county within Machakos County the Applicant jointly with others not before court while armed with crude weapons namely panga iron bar and sword robbed one Jones Wambua Mbithi unknown amount of money, DVD player, mobile phones make Samsung and Nokia 1100 all valued at Kshs.20,800/= and at the time of such robbery fatally injured the said Jones Wambua Mbithi.
2. In Count Il the Applicant faced the charge of Handling Suspected Stolen Property contrary to section 322(1) as read with section 322(2) of the Penal Code. The particulars are that on 26th day of January 2017 at Kwa Mwaura market Kyanzavi location in Matungulu sub county he received and retained two mobile phones make Samsung and Nokia 1100 valued at Kshs.11,000/= knowing or having reason to believe it to be stolen property.
3. The Applicant denied the charges and the matter was set down for hearing. The Prosecution called 10 witnesses to prove its case. The Applicant was convicted and sentenced to serve life imprisonment as provided by law.
4. Being dissatisfied with the conviction and sentence, the Applicant herein filed a first appeal at the High Court in Machakos in Criminal Appeal No. 78 of 2019. The appeal was heard and succeeded on sentence. Justice Odunga (as he was then) set aside the life sentence imposed upon the Applicant and substituted it to 40 years imprisonment to run from the 27th February 2017.
The application
5. The Applicant has thus filed the present application dated 4th June 2024 together with a supporting affidavit of even date seeking review orders in respect to sentence. In the application, he states that he does not intend to appeal to the Court of Appeal.
6. The Respondent/State did not file a response to the application but instead requested that the Trial Court, the High Court Appeal and the Court of Appeal judgments be availed to the court and to them for perusal and consideration on the Applicant’s application herein.
7. A look at the record shows that copies of the judgements in High Court Criminal Appeal No. 78 of 2019 and the Trial Court case No. 145 of 2017 were availed to court. The Applicant stated that he did not wish to file a second appeal to the Court of Appeal.
Submissions
8. The application was directed to be canvassed by way of written submissions. Both parties complied, the applicant’s submissions are dated 11/10/2024 whilst the Respondent’s submissions are dated 16/01/2025.
9. The Applicant was explicit that the review is confined to the sentence imposed on him, and that it is premised on the grounds and mitigating factors set out in his application. The Applicant submits that the 40 years imprisonment imposed on him is more than what translates to life imprisonment and by dint of this the applicant feels that he is serving a sentence longer than life imprisonment based on the current jurisprudence on life imprisonment. The Applicant urges this court to be pleased to invoke Article 27 of the constitution and award him with a sentence that will be in line with the current jurisprudence and judicial position on sentencing.
Lastly, the applicant further implores this court to take into account that he is a first-time offender who deserves a second chance and that he undertakes not to engage in any criminal activity and promises to be a law-abiding citizen, and has embraced prison reforms and rehabilitation programs.
10. Learned counsel for the Respondent, Ms. Agatha Abang, opposed the application. In her submissions, she argued that this honourable court has no jurisdiction to hear this instant application. The Court which heard the first appeal is a court of concurrent jurisdiction as this honourable court. She cited the case of Okeno vs Republic (1972) EA 32 where the Court of Appeal for Eastern Africa stated that:
"...An appellant on afirst appeal is entitled to expect the evidence as a whole to be subjected to a flesh and exhaustive examination (Pandya V R 1975) E.A 336 and to the appellant court's own decision on the evidence.st appellant court must itself weigh conflicting evidence and draw its own conclusion (Shantilal M. Ruwala V. R [1957] E. A 570). It is not the junction of a first appellate court merely to scrutinise the evidence to see if there was some evidence to support the lower court's finding and conclusions, it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate 's findings should be supported. In doing so, it should make allowance for the fact that the trial has had the advantage of hearing and seeing the witnesses”.
11. The Respondent submitted that the High Court that heard the first appeal fully analysed the evidence and arrived in its own decision. The High Court dismissed the appeal on conviction but the appeal on sentence succeeded and the sentence was reduced from life imprisonment to 40 years imprisonment.
12. That the Applicant is misguided on the Muruatetu decision as the Supreme Court, the Apex Court of the land, in the Muruatetu Guidelines clarified that it relates to sentences under section 203 and 204 of the Penal Code which are murder cases only. The Applicant herein was charged with robbery with violence under section 295 as read with section 296 (2) of the Penal Code. The Muruatetu Guidelines do not in any way apply to robbery with violence cases when it comes to resentencing as pleaded by the Applicant.
13. The Respondent set out the Muruatetu Guidelines which provide as follows:
i. The decision of Muruatetu and these guidelines apply only in respect to sentences of murder under Sections 203 and 204 of the Penal Code;
ii. The Judiciary Sentencing Policy Guidelines to be revised in tandem with the new jurisprudence enunciated in Muruatetu;
iii. All offenders who have been subject to the mandatory death penalty and desire to be heard on sentence will be entitled to re-sentencing hearing.
iv. Where an appeal is pending before the Court of Appeal, the High Court will entertain an application for re-sentencing upon being satisfied that the appeal has been withdrawn.
v. In re-sentencing hearing, the court must record the prosecution's and the appellant's submissions under Section 329 of the Criminal Procedure Code, as well as those of the victims before deciding on the suitable sentence.
vi. An application for re-sentencing arising from a trial before the High Court can only be entertained by the High Court, which has jurisdiction to do so and not the subordinate court.
vii. In re-hearing sentence for the charge of murder, both aggravating and mitigating factors such as the following, will guide the court;
(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) The manner in which the offence was committed on the victim;
(g) The physical and psychological effect of the offence on the victim's family;
(h) Remorsefulness of the offender;
(i) The possibility of reform and social re-adaptation of the offender;
(j) Any other factor that the Court considers relevant.
viii. Where the appellant has lodged an appeal against sentence alone, the appellate court will proceed to receive submissions on re-sentencing.
ix. These guidelines will be followed by the High Court and the Court of Appeal in ongoing murder trials and appeals. They will also apply to sentences imposed under Section 204 of the Penal Code before the decision in Muruatetu.
14. The Respondent submitted that the Supreme Court directives are binding on all courts unless the Supreme Court is properly moved as it was in the Muruatetu case.
15. That the Applicant seeks this honourable court to consider his age as a mitigating factor but failed to place anything before this court to indicate that his age poses an issue in serving his sentence. The Applicant's sentence was reduced from life sentence to 40 years imprisonment by Odunga J (as he was then). In reducing this sentence, the learned judge took all matters into consideration. The Respondent submitted that the sentence was lenient under the circumstance. A life was lost in the course of the robbery which was undertaken with crude weapons. The Respondent urged this court to uphold the said sentence as ordered by Justice Odunga (as he was then).
Analysis and Determination
16. I have given careful consideration to the application and the parties’ rival submissions thereto.
17. Accordingly, I have perused the appeal judgment before this court in Machakos High Court Appeal No. 78 of 2019.
18. There is no indication that the Applicant filed a second appeal to the Court of Appeal. He has now applied to this High Court seeking further review or resentencing.
19. In my considered view, the Applicant ought to have appealed against the appeal judgment and/or sentence to the Court of Appeal as this court became functus officio once the High Court delivered the judgment subject of the application herein. The Court of Appeal has the jurisdiction over the same in exercise of its appellate jurisdiction under Article 164(3) of the Constitution and Section 379(1) of the Criminal Procedure Code.
20. I have said enough to demonstrate that this court does not have jurisdiction to entertain the instant application. The court therefore downs its tools (See the owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR).
21. In consideration of the decision of Supreme Court in the Muruatetu’s Case and in consideration of the minimum sentence set by the Sexual Offence Act and in consideration of the applicant’s application, the sentence of 20 years imprisonment is legal and lawful.
22. It is trite law that sentence review, even on appeal, ought not to be easily done; and that certain factors must be present to warrant such intervention. Some of these factors were discussed in the case of Ogalo s/o Owuora v Republic [1954] 21 EACA 270, as follows:
“…The court does not alter a sentence on the mere ground than if the member of the court had been trying the appellant, they might have passed a somewhat different sentence and it will not ordinarily interfere with the discretion exercised by a trial judge unless as was said in James v Republic [1950] 18 EACA 147, it is evident that the judge has acted upon some wrong principle or overlooked some material factor. To this we would also add a third criterion namely that the sentence is manifestly excessive in view of the circumstances of the case.”
23. Similarly, in Bernard Kimani Gacheru v Republic [2002] eKLR, the Court of Appeal restated that:
“It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor or took into account some wrong material, or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist”.
24. In this instance, it is common ground that the sentence imposed by the subordinate court has already been reconsidered on appeal and dismissed by a court of concurrent jurisdiction. Accordingly, the only avenue open for the applicant was to appeal the decision to the Court of Appeal. The question of further consideration by this court cannot arise. In this connection, I agree entirely with the expressions of Hon. Aburili, J. in Constitutional Petition No. 5 of 2018 Daniel Otieno Oracha v Republic [2019] eKLR, that:
“The law abhors the practice of a judge sitting to review a judgment or decision of another judge of concurrent jurisdiction. Reduction of sentence could only be considered by the Court of Appeal or if this court was sitting on appeal of a judgment of the subordinate court or if the petitioner was seeking for resentence after exhausting appeal mechanisms and not otherwise”.
25. The cited judgment of Hon. Aburili, J made in accordance with the law has not been challenged. This court cannot sit on appeal of its own judgment or of court of concurrent competent jurisdiction when the Applicant had an opportunity to ventilate his grievance before the Court of Appeal even if it was to challenge sentence alone.
26. Cases ought to be handled procedurally in the right forum. This is because the rule of the thumb 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 and that matters falling under the exclusive jurisdiction of Supreme Court under Article 163(3) cannot be dealt with by the High Court.
27. Therefore, the applicant’s prayer for his sentence to be reviewed further and be substituted with non-custodial sentence is indeed misconceived and I so find. In the result, the application for sentence review is hereby dismissed for want of jurisdiction.
28. Orders accordingly. File closed.
RULING WRITTEN, DATED & SIGNED AT MACHAKOS THIS 27TH MAY 2025
NOEL I. ADAGI
JUDGE
DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 27TH MAY 2025
In the presence of:
At Kamiti Max Prison........ for Appellant
Ms Agatha............... for Respondent
Milly.................. Court Assistant