REPUBLC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CRIMINAL MISC. APPLICATION NO. E073 OF 2024
KIOKO KAWEMBE .............................................................................APPELLANT
-VERSUS-
REPUBLIC.........................................................................................RESPONDENT
RULING
Introduction
1. The applicant, Kioko Kawembe, filed an undated Notice of Motion herein under Article165(6), Rule 20 of Practice directions on standardization of practice and procedure in the High Court Rules 2021. The applicant is seeking that the court be pleased to grant a mitigation and review of the life sentence he is currently serving.
2. The applicant was charged in Kithimani Magistrate’s Court Criminal Case No. 822 of 2011 with two Counts of robbery with violence contrary to section 295 as read with section 296(2) of the Penal Code. In Count I the particulars are that on the night of 15/12/2012 at around I :30a.m at Matuu town in Yatta district within Machakos county jointly with others not before court being armed with a dangerous weapon namely a wooden object (timber) robbed Geoffrey Sambu Kaki of a mobile phone make Nokia ETI valued at Kshs.34,900.00, kabambe mobile phone valued at Kshs.2,000.00, cash Kshs.1,800.00 two brief case bags extension socket and DVD player make Sony all valued at Kshs.49, 150.00 and immediately before the time of robbery struck the said Geoffrey Sambua Kakai.
3. In Count Il the particulars are that in the same night and same time and place jointly with others not before court and being armed with dangerous weapons namely a panga and wooden object (timber) robbed Fredrick Otieno Omondi of a mobile phone make Tecno valued at Kshs.6,000.00, a wallet Kshs.2,000.00 and national identity card and immediately before the time of such robbery struck the said Fredrick Otieno Omondi.
4. The prosecution called four (4) witnesses to support its case and the applicant was convicted and sentenced to death on 27/2/2014.
5. The applicant being dissatisfied with the conviction and sentence filed a first Appeal to the High Court at Machakos in Criminal Appeal No. 105 of 2014. The High Court being a court of first appeal, evaluated the evidence and thereafter dismissed the appeal in its entirety as the said appeal lacked merit. The conviction and sentence of the trial court were upheld on 19th December, 2017.
6. The applicant in the instant application at paragraph 4 avers that he filed a second appeal to the Court of Appeal in the year 2017 but he is yet to receive a response to it.
7. The respondent requested that both the Trial Court and the High Court Appeal judgments be availed to the court and to them for perusal and consideration on the applicant’s application herein. Both judgements were availed to court.
8. The respondent also filed grounds of opposition dated 13/10/2024 that the orders sought are incapable of being granted by this court; the application filed herein is not only misconceived and bad in law but also misplaced as this court cannot review a correct and lawful sentence; this court lacks jurisdiction to hear and determine this application since review applies to incorrect, improper or illegal orders issued by the lower court; and that the application is vexatious and misleading and abuse of the process of court.
9. The respondent prays the applicant's application be dismissed in its entirety.
10. The application was directed to be canvassed by way of written submissions. Both parties complied, the applicant’s submissions are undated whilst the Respondent’s submissions are dated 20/02/2025.
Applicant’s submissions
11. The applicant submitted that, after receiving the respondent's submissions dated 12th February 2025, his response is that the respondent has clearly acknowledged that sentencing is a matter of discretion of the court and that the court can give a sentence other than the death sentence. He agrees also with the respondent that the death sentence was not outlawed by the Supreme Court however jurisdiction has changed overtime.
12. The applicant cited the cases of the Court of Appeal in Malindi in Criminal Appeal No. 12 of 2021, Julius Kitsao Manyeso that declared life sentence to be unconstitutional, Evans Nyamari Ayako Criminal Appeal No.22 of 2018 at Kisumu that declared the life sentence to be translated to 30 years to be persuasive cases to his application. He submitted that the said judgments gave this court powers to give out sentences which are not mandatory as this court can now interfere with the mandatory sentences and give the applicant a lenient sentence in the spirit of rehabilitation and decongestion of prisons. He also referred to the recent ruling in the Constitutional Petition at Mombasa in Shaban Salim Ramadhan and Others together with Gerald Muiruri Waithaka and 13 Others vs Attorney General and the DPP Constitutional Petition No.5 consolidated with No.6 of 2022 which was as a result of Supreme Court rulings which gave orders that the Muruatetu Case only applied to the Murder convicts and that other convicted prisoners with other cases can make their own application for them to get reprieve from courts. This application is pursuant to the Muruatetu Supreme Court decision on the unconstitutionality of the mandatory nature of sentence.
13. The applicant argued that many applicants have benefited from the said rulings and prays that he too gets a chance to benefit from the said changes of jurisprudence as asks this court to give him a chance and to use its discretion as the respondent has already acknowledged in their submissions that the Court has a discretion to give the applicant an alternative sentence.
14. The applicant being among the applicants who were sentenced for the offence of Robbery with Violence prays that this court reviews his sentence to a lenient sentence putting into consideration the above rulings which have changed the jurisprudence in our courts.
Respondent’s submissions
15. Learned counsel for the Respondent, Ms. Agatha Abang, opposed the application. She submitted that the High Court in Machakos High Court Criminal Appeal No.105 of 2014 fully analysed the evidence of the Prosecution case and rightfully concluded that the Prosecution proved its case beyond reasonable doubt proving all the ingredients of robbery. The Honourable Judge was right in dismissing the appeal for lack of merit.
16. The respondent submitted that the High Court in Machakos in the Criminal Appeal No.105 of 2014 and this Court are of the same jurisdiction and that this court cannot purport to overturn the judgment and findings of the court of similar jurisdiction.
17. Further, the respondent submitted that the applicant is not entitled to an order of sentence review as he had not exhausted all his avenues of appeal in the matter.
18. In addition, the respondent submitted that the applicant is not entitled to an order of resentencing as the sentence under the law was proper, valid and in accordance with the penalty under the law. It did not pronounce itself on the sentences as regards any other offence let alone the life sentence.
19. That the said sentences have not been declared unconstitutional in any court of law in Kenya. The respondent submitted that the death sentence is a proper and valid sentence within the jurisdiction of Kenya. The respondent cited the Muruatetu Another v Republic; Katiba Institute 4 others (Amicus Curiae) [2021/ KESC 31 (KLR) (Directions) where the supreme court has further pronounced that:
"The mandatory nature of the death sentence as provided for under section 204 of the Penal Code is hereby' declared unconstitutional. For the avoidance of doubt, this order does not disturb the validity of the death sentence as contemplated under article 26(3) of the Constitution.”
20. They submitted that this court has no jurisdiction to entertain the application of review of the sentence herein for the reasons mentioned above.
21. The respondent referred to the case of William Mwangale Ongoma v Republic [2020/ KEIIC 1446 (KLR) where the learned judge held that:
“.....A court in revision is not concerned with the merits of the decision of the court but rather on the impropriety, mistake, illegality of the order. sentence or judgement...... This court's powers of revision are limited to satisfying itself as to the correctness, legality or propriety o/any findings, sentence, or order recorded or passed and as to the regularity' of any proceeding of any such subordinate court and in exercising supervisory jurisdiction under Article 165(6) of the Constitution /he court does not exercise appellate jurisdiction and therefore cannot review or re-weigh evidence upon which the determination of lower court was based and can only upset an order which it considers erroneous, without jurisdiction and constitutes gross violation of the fair administration of justice......”
22. The sentence issued to the Applicant was proper and within the law under circumstances. The Decision of the court trial court was not improper, not a mistake neither was it illegal.
23. The respondent urges the court to rely on the Supreme courts assertions in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) 3 others (Amicus Curiae) [2024/ KESC 34 (KLR) that:
“Before Kenyan courts can determine whether or not the above trends and decisions are persuasive, we reiterate that there ought t0 be a proper case filed, presented and fully argued before the High Court and escalated through the appropriate channels on the constitutional validity or otherwise of minimum sentences or mandatory sentences other than for the offence of murder. This was our approach and direction in Muruatetu which must remain binding to all courts below.”
24. The respondent urges this court to dismiss this application in its entirety for lack of merit
Analysis and determination
25. I have given careful consideration to the application, grounds of opposition and the parties’ submissions thereto. The issue that presents itself for determination is whether this court has jurisdiction to grant the orders sought.
26. Accordingly, I have perused the appeal judgment before this court in Machakos High Court Appeal No.105 of 2014 delivered by Hon. Justice D. K. Kemei, J. The said judgment reveals that the applicant was indeed charged in Kithimani Magistrate’s Court Criminal Case No. 822 of 2011 with two Counts of robbery with violence Contrary to Section 295 as read with Section 296(2) of the Penal Code. The trial court found that the charges of robbery with violence contrary to Section 295 as read with Section 296 (2) of the Penal Code were proved against the appellant to the required standard and proceeded to convict him.
27. The judgment of the appellate court confirms that, the appeal was dismissed in its entirety. The Court held:
“The prosecution indeed proved the essential ingredients of the offence of robbery with violence against the appellant beyond reasonable doubt. The appellant was in company of others and armed with dangerous and offensive weapons and that they stole property from the complainants. Even though the Doctor was not called to testify and produce the P3 Form, I find the other ingredients of the offence in Section 296 (2) of the Penal code were proved by the Prosecution beyond any reasonable doubt”
In the result it is the finding of this court that the Appellant’s appeal herein lacks merit. The same is ordered dismissed. The conviction and sentence are upheld and the appeal dismissed.”
28. It is this sentence that the applicant seeks this court to review. This court is a first appellate court. The appellant’s first appeal being High Court Criminal Appeal No.105 of 2014 was determined by Hon. Justice D. K. Kemei, J in his capacity as a Judge of the High Court. His judgement dated 19th September 2017 is a judgement or order of a court of concurrent jurisdiction with this court.
29. The jurisdiction of this court is provided for under Article 165(3) of the Constitution and includes unlimited original jurisdiction in criminal and civil matters; jurisdiction to enforce bill of rights; appellate jurisdiction; interpretative jurisdiction, supervisory jurisdiction and any other jurisdiction, original or appellate, conferred on it by legislation. Under the said Article, this court does not have jurisdiction to review/revise a decision of a court of concurrent jurisdiction. The revisionary jurisdiction of this court is only limited to proceedings of subordinate courts under Section 362-365 of the Criminal Procedure Code.
30. The first appellate court herein (Hon. Justice D. K. Kemei, J) was a court of concurrent jurisdiction with this court. What the applicant is seeking therefore is for this court to review the decision of a court of concurrent jurisdiction. It is my view that in the circumstances herein, this court is bereft of any jurisdiction to review the said decision as doing so would be tantamount to sitting as an appellate court on the judgment of Hon. Justice D. K. Kemei, J. The law abhors that practice of a judge sitting to review a judgment or decision of another judge of concurrent jurisdiction and a case ought to be handled procedurally in the right forum. As a rule, superior courts cannot sit in review/appeal over decisions of their peers of equal and competent jurisdiction much less those courts higher than themselves.
31. In my 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 Hon. Justice D. K. Kemei, J 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.
32. It is my considered view that I have said enough to demonstrate that this court does not have jurisdiction to entertain the instant application. The court therefore down its tools (See the owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR).
33. 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 life imprisonment is legal and lawful.
34. 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.”
35. 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.
36. 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”.
37. The 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 Petitioner had an opportunity to ventilate his grievance before the Court of Appeal even if it was to challenge sentence alone.
38. 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.
39. 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.
40. Orders accordingly.
RULING WRITTEN, DATED & SIGNED AT MACHAKOS THIS 28TH MAY 2025
NOEL I. ADAGI
JUDGE
DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 28TH MAY 2025
In the presence of :
At Kamiti Max. prison........... Appellant
Ms. Agatha....................... ..for Respondent
Wambua...................... Court Assistant
IN THE HIGH COURT OF KENYA AT MACHAKOS
CRIMINAL MISC. APPLICATION NO. E073 OF 2024
KIOKO KAWEMBE .............................................................................APPELLANT
-VERSUS-
REPUBLIC.........................................................................................RESPONDENT
RULING
Introduction
1. The applicant, Kioko Kawembe, filed an undated Notice of Motion herein under Article165(6), Rule 20 of Practice directions on standardization of practice and procedure in the High Court Rules 2021. The applicant is seeking that the court be pleased to grant a mitigation and review of the life sentence he is currently serving.
2. The applicant was charged in Kithimani Magistrate’s Court Criminal Case No. 822 of 2011 with two Counts of robbery with violence contrary to section 295 as read with section 296(2) of the Penal Code. In Count I the particulars are that on the night of 15/12/2012 at around I :30a.m at Matuu town in Yatta district within Machakos county jointly with others not before court being armed with a dangerous weapon namely a wooden object (timber) robbed Geoffrey Sambu Kaki of a mobile phone make Nokia ETI valued at Kshs.34,900.00, kabambe mobile phone valued at Kshs.2,000.00, cash Kshs.1,800.00 two brief case bags extension socket and DVD player make Sony all valued at Kshs.49, 150.00 and immediately before the time of robbery struck the said Geoffrey Sambua Kakai.
3. In Count Il the particulars are that in the same night and same time and place jointly with others not before court and being armed with dangerous weapons namely a panga and wooden object (timber) robbed Fredrick Otieno Omondi of a mobile phone make Tecno valued at Kshs.6,000.00, a wallet Kshs.2,000.00 and national identity card and immediately before the time of such robbery struck the said Fredrick Otieno Omondi.
4. The prosecution called four (4) witnesses to support its case and the applicant was convicted and sentenced to death on 27/2/2014.
5. The applicant being dissatisfied with the conviction and sentence filed a first Appeal to the High Court at Machakos in Criminal Appeal No. 105 of 2014. The High Court being a court of first appeal, evaluated the evidence and thereafter dismissed the appeal in its entirety as the said appeal lacked merit. The conviction and sentence of the trial court were upheld on 19th December, 2017.
6. The applicant in the instant application at paragraph 4 avers that he filed a second appeal to the Court of Appeal in the year 2017 but he is yet to receive a response to it.
7. The respondent requested that both the Trial Court and the High Court Appeal judgments be availed to the court and to them for perusal and consideration on the applicant’s application herein. Both judgements were availed to court.
8. The respondent also filed grounds of opposition dated 13/10/2024 that the orders sought are incapable of being granted by this court; the application filed herein is not only misconceived and bad in law but also misplaced as this court cannot review a correct and lawful sentence; this court lacks jurisdiction to hear and determine this application since review applies to incorrect, improper or illegal orders issued by the lower court; and that the application is vexatious and misleading and abuse of the process of court.
9. The respondent prays the applicant's application be dismissed in its entirety.
10. The application was directed to be canvassed by way of written submissions. Both parties complied, the applicant’s submissions are undated whilst the Respondent’s submissions are dated 20/02/2025.
Applicant’s submissions
11. The applicant submitted that, after receiving the respondent's submissions dated 12th February 2025, his response is that the respondent has clearly acknowledged that sentencing is a matter of discretion of the court and that the court can give a sentence other than the death sentence. He agrees also with the respondent that the death sentence was not outlawed by the Supreme Court however jurisdiction has changed overtime.
12. The applicant cited the cases of the Court of Appeal in Malindi in Criminal Appeal No. 12 of 2021, Julius Kitsao Manyeso that declared life sentence to be unconstitutional, Evans Nyamari Ayako Criminal Appeal No.22 of 2018 at Kisumu that declared the life sentence to be translated to 30 years to be persuasive cases to his application. He submitted that the said judgments gave this court powers to give out sentences which are not mandatory as this court can now interfere with the mandatory sentences and give the applicant a lenient sentence in the spirit of rehabilitation and decongestion of prisons. He also referred to the recent ruling in the Constitutional Petition at Mombasa in Shaban Salim Ramadhan and Others together with Gerald Muiruri Waithaka and 13 Others vs Attorney General and the DPP Constitutional Petition No.5 consolidated with No.6 of 2022 which was as a result of Supreme Court rulings which gave orders that the Muruatetu Case only applied to the Murder convicts and that other convicted prisoners with other cases can make their own application for them to get reprieve from courts. This application is pursuant to the Muruatetu Supreme Court decision on the unconstitutionality of the mandatory nature of sentence.
13. The applicant argued that many applicants have benefited from the said rulings and prays that he too gets a chance to benefit from the said changes of jurisprudence as asks this court to give him a chance and to use its discretion as the respondent has already acknowledged in their submissions that the Court has a discretion to give the applicant an alternative sentence.
14. The applicant being among the applicants who were sentenced for the offence of Robbery with Violence prays that this court reviews his sentence to a lenient sentence putting into consideration the above rulings which have changed the jurisprudence in our courts.
Respondent’s submissions
15. Learned counsel for the Respondent, Ms. Agatha Abang, opposed the application. She submitted that the High Court in Machakos High Court Criminal Appeal No.105 of 2014 fully analysed the evidence of the Prosecution case and rightfully concluded that the Prosecution proved its case beyond reasonable doubt proving all the ingredients of robbery. The Honourable Judge was right in dismissing the appeal for lack of merit.
16. The respondent submitted that the High Court in Machakos in the Criminal Appeal No.105 of 2014 and this Court are of the same jurisdiction and that this court cannot purport to overturn the judgment and findings of the court of similar jurisdiction.
17. Further, the respondent submitted that the applicant is not entitled to an order of sentence review as he had not exhausted all his avenues of appeal in the matter.
18. In addition, the respondent submitted that the applicant is not entitled to an order of resentencing as the sentence under the law was proper, valid and in accordance with the penalty under the law. It did not pronounce itself on the sentences as regards any other offence let alone the life sentence.
19. That the said sentences have not been declared unconstitutional in any court of law in Kenya. The respondent submitted that the death sentence is a proper and valid sentence within the jurisdiction of Kenya. The respondent cited the Muruatetu Another v Republic; Katiba Institute 4 others (Amicus Curiae) [2021/ KESC 31 (KLR) (Directions) where the supreme court has further pronounced that:
"The mandatory nature of the death sentence as provided for under section 204 of the Penal Code is hereby' declared unconstitutional. For the avoidance of doubt, this order does not disturb the validity of the death sentence as contemplated under article 26(3) of the Constitution.”
20. They submitted that this court has no jurisdiction to entertain the application of review of the sentence herein for the reasons mentioned above.
21. The respondent referred to the case of William Mwangale Ongoma v Republic [2020/ KEIIC 1446 (KLR) where the learned judge held that:
“.....A court in revision is not concerned with the merits of the decision of the court but rather on the impropriety, mistake, illegality of the order. sentence or judgement...... This court's powers of revision are limited to satisfying itself as to the correctness, legality or propriety o/any findings, sentence, or order recorded or passed and as to the regularity' of any proceeding of any such subordinate court and in exercising supervisory jurisdiction under Article 165(6) of the Constitution /he court does not exercise appellate jurisdiction and therefore cannot review or re-weigh evidence upon which the determination of lower court was based and can only upset an order which it considers erroneous, without jurisdiction and constitutes gross violation of the fair administration of justice......”
22. The sentence issued to the Applicant was proper and within the law under circumstances. The Decision of the court trial court was not improper, not a mistake neither was it illegal.
23. The respondent urges the court to rely on the Supreme courts assertions in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) 3 others (Amicus Curiae) [2024/ KESC 34 (KLR) that:
“Before Kenyan courts can determine whether or not the above trends and decisions are persuasive, we reiterate that there ought t0 be a proper case filed, presented and fully argued before the High Court and escalated through the appropriate channels on the constitutional validity or otherwise of minimum sentences or mandatory sentences other than for the offence of murder. This was our approach and direction in Muruatetu which must remain binding to all courts below.”
24. The respondent urges this court to dismiss this application in its entirety for lack of merit
Analysis and determination
25. I have given careful consideration to the application, grounds of opposition and the parties’ submissions thereto. The issue that presents itself for determination is whether this court has jurisdiction to grant the orders sought.
26. Accordingly, I have perused the appeal judgment before this court in Machakos High Court Appeal No.105 of 2014 delivered by Hon. Justice D. K. Kemei, J. The said judgment reveals that the applicant was indeed charged in Kithimani Magistrate’s Court Criminal Case No. 822 of 2011 with two Counts of robbery with violence Contrary to Section 295 as read with Section 296(2) of the Penal Code. The trial court found that the charges of robbery with violence contrary to Section 295 as read with Section 296 (2) of the Penal Code were proved against the appellant to the required standard and proceeded to convict him.
27. The judgment of the appellate court confirms that, the appeal was dismissed in its entirety. The Court held:
“The prosecution indeed proved the essential ingredients of the offence of robbery with violence against the appellant beyond reasonable doubt. The appellant was in company of others and armed with dangerous and offensive weapons and that they stole property from the complainants. Even though the Doctor was not called to testify and produce the P3 Form, I find the other ingredients of the offence in Section 296 (2) of the Penal code were proved by the Prosecution beyond any reasonable doubt”
In the result it is the finding of this court that the Appellant’s appeal herein lacks merit. The same is ordered dismissed. The conviction and sentence are upheld and the appeal dismissed.”
28. It is this sentence that the applicant seeks this court to review. This court is a first appellate court. The appellant’s first appeal being High Court Criminal Appeal No.105 of 2014 was determined by Hon. Justice D. K. Kemei, J in his capacity as a Judge of the High Court. His judgement dated 19th September 2017 is a judgement or order of a court of concurrent jurisdiction with this court.
29. The jurisdiction of this court is provided for under Article 165(3) of the Constitution and includes unlimited original jurisdiction in criminal and civil matters; jurisdiction to enforce bill of rights; appellate jurisdiction; interpretative jurisdiction, supervisory jurisdiction and any other jurisdiction, original or appellate, conferred on it by legislation. Under the said Article, this court does not have jurisdiction to review/revise a decision of a court of concurrent jurisdiction. The revisionary jurisdiction of this court is only limited to proceedings of subordinate courts under Section 362-365 of the Criminal Procedure Code.
30. The first appellate court herein (Hon. Justice D. K. Kemei, J) was a court of concurrent jurisdiction with this court. What the applicant is seeking therefore is for this court to review the decision of a court of concurrent jurisdiction. It is my view that in the circumstances herein, this court is bereft of any jurisdiction to review the said decision as doing so would be tantamount to sitting as an appellate court on the judgment of Hon. Justice D. K. Kemei, J. The law abhors that practice of a judge sitting to review a judgment or decision of another judge of concurrent jurisdiction and a case ought to be handled procedurally in the right forum. As a rule, superior courts cannot sit in review/appeal over decisions of their peers of equal and competent jurisdiction much less those courts higher than themselves.
31. In my 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 Hon. Justice D. K. Kemei, J 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.
32. It is my considered view that I have said enough to demonstrate that this court does not have jurisdiction to entertain the instant application. The court therefore down its tools (See the owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR).
33. 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 life imprisonment is legal and lawful.
34. 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.”
35. 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.
36. 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”.
37. The 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 Petitioner had an opportunity to ventilate his grievance before the Court of Appeal even if it was to challenge sentence alone.
38. 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.
39. 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.
40. Orders accordingly.
RULING WRITTEN, DATED & SIGNED AT MACHAKOS THIS 28TH MAY 2025
NOEL I. ADAGI
JUDGE
DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 28TH MAY 2025
In the presence of :
At Kamiti Max. prison........... Appellant
Ms. Agatha....................... ..for Respondent
Wambua...................... Court Assistant