Skip to content
JudgmentMWALEWA KADZENGA MUNGA VS The Republic4 min read

MWALEWA KADZENGA MUNGA VS The Republic

High Court at Malindi High Court · · M Thande

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MALINDI

CRIMINAL REVISION NO. E005 OF 2024

MALEWA KADZENGA MUNGA ………….……….…..…………………….........APPLICANT

VERSUS

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

JUDGMENT

  1. By an Application filed on 29.1.24, the Applicant seeks commutation of the sentence to probation placement. The Applicant stated that he was on 11.4.18 convicted of the offence of murder in Malindi HCCR Case No. 6 of 2016 and sentenced to 15 years imprisonment. He now says that he is a senior citizen aged 75 years in poor health and that his continued stay in prison is affecting his health. He further stated that he has been of good character in his community and that being put on probation for the remainder of his sentence will enable him fend for his family and other dependants. He relied on Section 4(2) of the Probation of Offenders Act to support his prayer for probation orders. 
  2. The Respondent opposed the Application vide grounds of opposition dated 23.4.24. The grounds are that the sentence imposed upon the Applicant was determined by the trial court as a matter of fact and that this Court does not have jurisdiction to review the same through the Application; that no proof of his illness was provided; that Kenyan laws do not provide for parole the behaviour of the Applicant notwithstanding; that litigation must come to an end; that the Application ought to be dismissed as it is bad in law, an abuse of the court process and devoid of merit.
  3. Under the Section 4 of the Probation of Offenders Act, courts have the power to permit conditional release of offenders under probation. The provision further stipulates the circumstances under which a probation order may be granted and the conditions that may be imposed. Section 4(2) cited by the Applicant, provides as follows:

Where any person is convicted of an offence by the High Court and the court is of the opinion that, having regard to the 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, in lieu of sentencing him to any punishment, make a probation order, and may require the offender to enter into a recognizance, with or without sureties, in such sum as the court may deem fit.

  1. Flowing from the above provision, it is clear that where the High Court convicts a person and forms the opinion, after considering the factors listed, that it is expedient to release the offender on probation, the court may make a probation order in lieu of sentencing him to any punishment. A reading of the above provision thus makes it clear that the power to grant probation orders can only be exercised by the court at sentencing, upon conviction.
  2. The circumstances herein are that the Applicant was convicted and sentenced by this Court. Had the Court been of the view that it was expedient to place him on probation instead of sentencing him to 15 years imprisonment, it would have done so. Evidently, the Court did not form such opinion. Having convicted and sentenced the Applicant, therefore, this Court is now functus officio and does not have the jurisdiction to entertain the Application before it. 
  3. It is trite that Court may only exercise that jurisdiction which has been conferred upon it by the Constitution, statute or both. 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, the provision 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 superior courts. 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.

  1. The Applicant was tried, convicted and sentenced by this Court, which is a superior court. By dint of Article 165(6) of the Constitution therefore, this Court lacks the jurisdiction to reopen the matter to relook at his sentence. The only recourse available to the Applicant is an appeal against the sentence imposed by the High Court, to the Court of Appeal.  
  2. In light of the foregoing, I find that the Application filed on 29.1.24 is incompetent for want of jurisdiction, and the same is hereby struck out.

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

_____________________

M. THANDE 

JUDGE

    MWALEWA KADZENGA MUNGA VS The Republic MWALEWA KADZENGA MUNGA VS The Republic