1. The applicant in this matter filed the instant application for review of sentence under Article 50(2)(q) of the Constitution of Kenya, 2010 Articles 8,5,7 UDHR, Article 41(5), and Article 10(3) of the ICCPR and Article 7(1), 5 of the African charter on Human and People's Right .
2. The applicant sought an order for review of the life sentence that she is currently serving and sought to have it substituted with a definite prison term.
3. The applicant also sought that the period that had spent in custody prior to her conviction and sentence be considered in the computation of her prison term.
4. The applicant was convicted for Murder and sentenced to suffer death but through presidential decree her sentence was commuted to life imprisonment.
5. The applicant told the court that she was remorseful and sorry for the events leading to the tragic loss of the deceased’s life thus she urged the court to consider giving her a second chance.
6. The applicant beseeched this court to invoke its powers vested under Article 159(c) of the 2010 Constitution of Kenya, and consider the efforts at making reparations and reconciliation with the victim's family.
7. According to the applicant, she had initiated reconciliation process awhile back but later realized that she needed help from religious teachers. She further told the court that the religious leaders had helped her in the journey of reconciliation which, according to her had turned out to be successful.
8. The applicant urged the court to consider granting the application in the interests of justice.
9. The application was supported by the annexed affidavit of contents of which have been fully considered by the court.
10. Mr. Mogere counsel for the state opposed the application and submitted that this court lacks jurisdiction over the matter since the applicant had been to both Court of Appeal and Supreme Court.
11. Counsel further argued that the issues the applicant wishes to raise were considered previously by both the Court of Appeal and Supreme Court.
12. The prosecution counsel urged the court not to entertain the application because to do so, the court would be acting without jurisdiction.
13. This court has considered the application as well as the arguments for and against as advanced by the applicant and counsel fort the respondent.
14. It is the finding of this court that the court lacks jurisdiction to entertain the application since the matter was heard by the Supreme Court as well as the Court of Appeal and determined with finality.
15. The court cannot take any one more step once the court determines that it lacks jurisdiction as was held in Owners of Motor Vessel Lillian “S”Vs Caltex Oil (K) Ltd (Civil Appeal 50 of 1989) [1989] KECA 48 (KLR)
16. The applicant has had her day in court and litigation must sadly come to an end.
17. Under the Doctrine of finality of judgment or immutability of judgment a decision that has acquired finality becomes immutable and unalterable and may not be modified in any respect thus where the Supreme court as the apex court has pronounced itself on a matter it is not open to any of the courts below it to re-open the matter no matter the characterization a party assigns to the new filing.
18. The sentence that the applicant is serving is a lawful sentence that this court cannot interfere with, and with tremendous respect the court declines to embark on a review of sentence that is obviously predicated upon on a cry for mercy and forgiveness without the backing of the law.
19. It is sad that this court must now consign the applicant to the fate she chose when she embarked on what clearly was a well calculated murder. The painful lesson that the case of the appellant teaches is that, those that elect violence as means of settling disputes must be prepared for the full and unpleasant consequences of their actions. Mercy may not always follow them!
20. The High court cannot review a decision of the Supreme Court thus this application is misconceived and is hereby dismissed in its entirety.
21. It is so ordered.
2. The applicant sought an order for review of the life sentence that she is currently serving and sought to have it substituted with a definite prison term.
3. The applicant also sought that the period that had spent in custody prior to her conviction and sentence be considered in the computation of her prison term.
4. The applicant was convicted for Murder and sentenced to suffer death but through presidential decree her sentence was commuted to life imprisonment.
5. The applicant told the court that she was remorseful and sorry for the events leading to the tragic loss of the deceased’s life thus she urged the court to consider giving her a second chance.
6. The applicant beseeched this court to invoke its powers vested under Article 159(c) of the 2010 Constitution of Kenya, and consider the efforts at making reparations and reconciliation with the victim's family.
7. According to the applicant, she had initiated reconciliation process awhile back but later realized that she needed help from religious teachers. She further told the court that the religious leaders had helped her in the journey of reconciliation which, according to her had turned out to be successful.
8. The applicant urged the court to consider granting the application in the interests of justice.
9. The application was supported by the annexed affidavit of contents of which have been fully considered by the court.
10. Mr. Mogere counsel for the state opposed the application and submitted that this court lacks jurisdiction over the matter since the applicant had been to both Court of Appeal and Supreme Court.
11. Counsel further argued that the issues the applicant wishes to raise were considered previously by both the Court of Appeal and Supreme Court.
12. The prosecution counsel urged the court not to entertain the application because to do so, the court would be acting without jurisdiction.
13. This court has considered the application as well as the arguments for and against as advanced by the applicant and counsel fort the respondent.
14. It is the finding of this court that the court lacks jurisdiction to entertain the application since the matter was heard by the Supreme Court as well as the Court of Appeal and determined with finality.
15. The court cannot take any one more step once the court determines that it lacks jurisdiction as was held in Owners of Motor Vessel Lillian “S”Vs Caltex Oil (K) Ltd (Civil Appeal 50 of 1989) [1989] KECA 48 (KLR)
16. The applicant has had her day in court and litigation must sadly come to an end.
17. Under the Doctrine of finality of judgment or immutability of judgment a decision that has acquired finality becomes immutable and unalterable and may not be modified in any respect thus where the Supreme court as the apex court has pronounced itself on a matter it is not open to any of the courts below it to re-open the matter no matter the characterization a party assigns to the new filing.
18. The sentence that the applicant is serving is a lawful sentence that this court cannot interfere with, and with tremendous respect the court declines to embark on a review of sentence that is obviously predicated upon on a cry for mercy and forgiveness without the backing of the law.
19. It is sad that this court must now consign the applicant to the fate she chose when she embarked on what clearly was a well calculated murder. The painful lesson that the case of the appellant teaches is that, those that elect violence as means of settling disputes must be prepared for the full and unpleasant consequences of their actions. Mercy may not always follow them!
20. The High court cannot review a decision of the Supreme Court thus this application is misconceived and is hereby dismissed in its entirety.
21. It is so ordered.