JUDGEMENT ON REVISION
The applicant was convicted and sentenced in Makueni S.O No. 30 of 2020 and being dissatisfied with the decision appealed to the High Court at Makueni vide HCCRA No. 043 of 2021. That appeal was dismissed on the 27/7/2022.
Through the Chamber Summons filed on 21st November 2022 the applicant seeks orders of review on the basis of the holding in Philip Maingi and five others Vs Rep Petition No. 17 of 2021 at Machakos High Court. He argues that constitutionality of mandatory minimum sentence raises a question of law under SOA as the mandatory nature of the sentences deprives court of legitimate its jurisdiction and exercise of its discretion which does not conform to tenets of trial as under Articles 25(c) of the Constitution(Christopher Ochieng Vs Republic (2018) Ap. No. 93/014, COA Ap. No. 312/018 Evans Wanjala Wanyonyi at Eldoret)
In the supporting affidavit he depones that he was arrested, tried and convicted for the offence of defilement contrary to the law and sentenced to life imprisonment that he appealed to the High Court and the sentence reduced to 10 years imprisonment; That having been aggrieved by that decision he filed my Misc. Application No. 125 of 2019 at Makueni High Court and following the recent development of the law in Philip Maingi & Five others vs Rep(2022) in Machakos High Court. He filed a petition relying on Article 27(1), 47(1), 2(4) of the Constitution
He filed submissions in support of the summons. Reading through the submissions I could see that the applicant was actually arguing his appeal. He draws the courts attention to the errors the trial court made in law and fact and that ultimately the charge against him was fabricated and was not proved beyond a reasonable doubt.
In his oral submissions he drew the court’s attention to the certificates he had supplied to the effect that he had reformed and needed to go home on a non-custodial sentence. He has two certificates related to Bible Studies and one proficiency certificate from Ministry of Education. He told the court that he was serving 12 years’ imprisonment
The state submits that the applicant has not had his rights and freedoms infringed as under Article 19(3) (a), 20(2) (a), 23(1), 27(1), 159(2)(a)(b) and 165(3) (b) (d) (1) (ii) of the Constitution and therefore the orders sought are not tenable.
It is submitted it is because the applicant is requesting this honourable court to review the decision of a superior court, High court at Makueni in HCCRA No. 043 of 2021. The applicant is requesting this honorable court to invoke its powers to review this decision under Article 165 (6) and (7) of the Constitution and S. 354 of the Criminal Procedure Code under the powers of review of the High Court.
Having considered the foregoing, the issue is whether the order for review is available to the applicant.
The first thing is that the applicant was not subjects to a mandatory sentence under the Sexual Offences Act. The trial Court sentenced him to 12 years’ imprisonment and not to the 15 years mandatory Sentence. That 12-year imprisonment term was upheld by this court on appeal.
The revisionary jurisdiction of this court to be exercised with respect to subordinate courts.
The applicant was not arguing a revision but an appeal and that recourse lies in the Court of Appeal
Hence, it is my view that having not been subject of a mandatory sentence, having had his appeal heard and determined by this court, this court would not entertain his application.
In the circumstances the application for revision is not successful.
It is dismissed.
Dated, signed and delivered this 21st May 2024