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JudgmentKAHINDI NGUMBAO KADSOMBA VS The Republic5 min read

KAHINDI NGUMBAO KADSOMBA VS The Republic

High Court at Malindi High Court · · M Thande

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MALINDI

MISCELLANEOUS APPLICATION NO. E050 OF 2024

KAHINDI NGUMBAO KADSOMBA.………………………........…………….…..APPLICANT

VERSUS

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

RULING

  1. The Applicant has filed the Application herein seeking that the sentence imposed upon him be reduced by period of 4 years and 5 months spent in custody during trial as provided under Section 333(2) of the Criminal Procedure Code. The Applicant stated that he was tried and convicted of the offence of murder in Malindi HCCR No. 24 of 2011 and sentenced to 25 years imprisonment. He thereafter filed an Appeal in the Court of Appeal which was dismissed. 
  2. The Respondent chose not to respond to the Application and left the matter to the Court.
  3. The Applicant seeks that this Court reviews the sentence imposed upon him by this Court and upheld by the Court of Appeal. The law, is that this Court may only exercise that jurisdiction which has been conferred upon it by the Constitution, statute or both.
  4. In the case of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR the Supreme Court stated 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.

  1. 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. This Court does not however, have jurisdiction to supervise superior courts. Article 165(6) provides 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.

  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. The circumstances herein are that this Court convicted and sentenced the Applicant. 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, a jurisdiction it does not have. Further, this would go against the constitutional hierarchy of our court system.
  2. At the helm of the court system in Kenya is the Supreme Court followed by the Court of Appeal. This Court falls below the Court of Appeal. After the Applicant was convicted by this Court, he appealed to the Court of Appeal and the same was dismissed. That decision of the Court of Appeal is binding on this Court. In light of this, this Court cannot entertain this matter in respect of which the Court of Appeal has pronounced itself.
  3. 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. I am duly guided by the cited decisions. The Petitioner’s appeal was heard and determined by the Court of Appeal, a fact that the Applicant admits. He cannot therefore invite this Court to tread on forbidden ground by reopening the matter to rehear the same, thus defying the constitutional hierarchy of the courts. Under Article 165(6) of the Constitution, this Court lacks jurisdiction to supervise a superior court and cannot therefore entertain this matter nor grant the orders sought, no matter how compelling the arguments placed before it. To do so would be to violate the constitutional judicial hierarchical norm.

  1. In light of the foregoing, the Court finds that the Application herein is incompetent and the same is hereby struck out. 

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

_____________________

M. THANDE 

JUDGE

    KAHINDI NGUMBAO KADSOMBA VS The Republic KAHINDI NGUMBAO KADSOMBA VS The Republic