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JudgmentMATANO CHARO KOI VS The Republic8 min read

MATANO CHARO KOI VS The Republic

High Court at Malindi High Court · · M Thande

 

  1. The facts herein as can be gleaned from the record are that the Petitioner was charged and convicted of the offence of defilement contrary to Section 8 (1) as read with Section 8(4) of the Sexual Offences Act, in Kilifi Criminal Case No. 315 of 214. He was sentenced to 15 years imprisonment on 7.9.17. Being dissatisfied with the decision, the Petitioner filed Criminal Appeal No. 38 of 2018, which appeal was dismissed on 10.2.2020. He then proceeded to file Criminal Appeal No. 14 of 2020 in the Court of Appeal which suffered the same fate.
  2. Not being content, the Petitioner has now returned to this Court by a Petition filed on 25.8.23, seeking review of the sentence imposed upon him. He urged that he is entitled to the least severe of the prescribed punishment for offence as provided under Article 50(2)(p) of the Constitution. He further sought that he be granted relief under Sections 4 and 5 of the Probation of Offenders Act. Additionally, he prayed for conditional released from prison and a non -custodial sentence for the remainder of his sentence. 

  1. The Petition is opposed by the Respondent vide a replying affidavit sworn on 27.11.23 by Joseph Mwangi, prosecution counsel. The Respondent averred that the Petitioner has admitted that he 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 Petitioner. As such, he is not entitled to the benefit of Sections 4 and 5 of the Probation of Offenders Act. Further that the Petitioner ought to approach the Commissioner of Prisons with his prayers under Section 46 of the Prisons Act and not this Court. 
  2. As I consider this matter, it is necessary to set the record straight regarding the oft cited provisions by petitioners who approach this court for review of sentence. These include Article 50(2)(p) of the Constitution and Section 4 and 5 of the Probation of Offenders Act.  
  3. Article 50(2)(p) of the Constitution provides:
        1. Every accused person has the right to a fair trial, which includes the right—

(p)  to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing;

  1. A plain reading of the above provision shows that the same relates to an offence in respect of which punishment has been changed between the time of commission of the offence and sentencing. In such event, an accused person shall be entitled to the least severe punishment. Clearly this provision does not relate to every sentence nor is it applicable in this case.
  2. Section 4 of the Probation of Offenders Act confers upon the court, the power to permit conditional release of offenders. It provides in part:

Where a person is charged with an offence which is triable by a subordinate court, and the court thinks that the charge is proved but is of the opinion that, having regard to age, character, antecedents, home surroundings, health or mental condition of the offender, or to the nature of the offence, or to any extenuating circumstances in which the offence was committed, it is expedient to release the offender on probation, the court may—

(a) convict the offender and make a probation order; or

      1. without proceeding to conviction, make a probation order, and in either case may require the offender to enter into a recognizance, with or without sureties, in such sum as the court may deem fit.
        1. …
  1. Section 5 relates to probation orders.
  2. What is clear is that the above provisions of the Probation of Offenders Act relate to orders that may be are made by a trial court upon conviction. The orders cannot be made post-conviction and sentence by another court. 
  3. Having stated the forgoing, I now turn to the Petition before me. It is common ground that this matter has been litigated in this Court and in the Court of Appeal. In light of this the question of jurisdiction arises.
  4. The law, is that this Court may only exercise that jurisdiction which has been conferred upon it by the Constitution, statute or both. A court cannot arrogate to itself jurisdiction that has not been conferred upon it by law nor exercise jurisdiction exceeding that which is conferred upon it by law. 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. Article 165 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 a superior court. 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. (emphasis)

  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 Petitioner has unsuccessfully appealed to both this Court and the Court of Appeal. What he now seeks is that this Court reviews its own decision and that of the Court of Appeal. This is a jurisdiction that this Court lacks. His appeals having been heard and dismissed by this Court and the Court of Appeal, the Petitioner cannot return to this Court for a review of the sentence imposed. This would be a violation of the hierarchical order of our court system.

  1. The Supreme Court is the highest court in the court system in Kenya, followed by the Court of Appeal and then the High Court and the Courts established pursuant to Article 162(2) of the Constitution. Following the dismissal of their appeal before this Court, the Petitioner moved to the Court of Appeal which also dismissed his 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 Petitioner’s appeals were heard and determined by this Court and the Court of Appeal, a fact that he admits. By dint of Article 165(6) therefore, this Court lacks the jurisdiction to reopen the matter to relook at his sentence that was upheld by the 2 superior courts.
  2. In light of the foregoing, I find that the Petition filed on 25.8.23 is incompetent for want of jurisdiction, and the same is hereby struck out.

DATED, SIGNED and DELIVERED in MALINDI this 13th day of December 2024

 

    MATANO CHARO KOI VS The Republic MATANO CHARO KOI VS The Republic