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JudgmentMBUU SAID VS The Republic5 min read

MBUU SAID VS The Republic

High Court at Mombasa High Court · · Wendy Micheni


(ORIGINATING FROM CRIMINAL CASE NO. 10 OF 2010 OF THE HIGH COURT OF MOMBASA AND COURT OF APPEAL CASE NO. 19 OF 2013 AT MOMBASA)

RULING

Introduction

  1. This Honourable Court is called to determine the Notice of Motion application dated 3rd May, 2023 by the Applicant who sought resentencing and prayed to have his sentence reviewed from the 40 years imprisonment to a more lenient sentence pursuant to Article 50(2)(p)(q) of the Constitution and that the eventual computation result into a balance of 3 years or less or even be granted probation. The brief facts of the case are that the Applicant was charged and convicted for the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code in Criminal Case No. 10 of 2010 at Mombasa High Court and he was sentenced for 35 years.
  2. The Applicant appealed and the Court of Appeal in C.O.A No. 19 of 2013 at Mombasa dismissed the appeal on conviction and enhanced the 35 years imprisonment to death. The Applicant lodged a resentencing petition through Misc Application No. 96 of 2020 at Mombasa whereby the death sentence was reduced to 40 years imprisonment.
  3. The Application is supported by the applicant’s affidavit wherein he avers that the 40 years sentence imposed by the High Court during resentencing was still harsh and excessive since it did not reflect the unique circumstances and facts of his case.

Analysis and Determination

  1. 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 As a consequence of this decision, paragraph 6.4-6.7 of the guidelines are no longer applicable.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.””

  1. The Applicant was convicted and sentenced for the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code.
  2. 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.
  3. 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.
  4. 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 and there is a re sentence.
  5. The  jurisprudence which was developed by 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 did not open an endless flow of litgation. 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 right.
  6. 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

  1. 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. 96 of 2020 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.
  2. In the result, the notice of Motion application dated 3rd May, 2023 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. Maureen Court Assistant;

MR NGIRI……………State Counsel;

………………………………………….…Applicant

    MBUU SAID VS The Republic MBUU SAID VS The Republic