A. Introduction
1. Before this Court is an undated Notice of Motion seeking revision of the sentence imposed upon him by the High Court in Criminal Case No. E021 of 2021 . The application is expressed to be brought under Articles 22, 25(c), 27(1), 50(1)(2)(p)(b)(c), 159(2), (d),165 (3)(7) of the Constitution, Section 333 (2), 362 and 364 of the Criminal procedure code.
2. The Applicant asks this Court to revise the sentence of ten (10) years' imprisonment imposed upon him following his conviction for the offence of manslaughter, and to either reduce the remaining custodial term or substitute it with a probation order. He further seeks to have this Court consider the period he spent in pre-trial custody and have the same discounted from the 10 years imprisonment.
3. The applicant has posited that he is now rehabilitation and has suffered ill health in prison. The applicant further implores this court to consider the Chief Justice's directions issued on 7 December 2022 regarding sentence review and prison decongestion.
4. The application was opposed by the Director of Public Prosecutions. The Respondent contended that the application is incompetent because this Court lacks jurisdiction to revise a sentence imposed by another Judge of the High Court.
5. The respondent submitted that Sections 362 and 364 of the Criminal Procedure Code confer revisionary jurisdiction only over proceedings before subordinate courts and not over decisions of courts of concurrent jurisdiction. The Respondent therefore urged the Court to dismiss the application in limine .
6. The application raises an important question regarding the scope of the High Court's revisionary jurisdiction. Although the Applicant has presented several grounds in support of his request, the Court must first determine whether it possesses the legal authority to entertain the application.
7. Jurisdiction is not a procedural technicality capable of being overlooked in the interests of justice. It is the legal foundation upon which every judicial decision rests. Without jurisdiction, a court has no authority to examine the merits of a dispute, however compelling the facts may appear. See Owners of Motor “Lillian S” vs Caltex Oil (k) Ltd (1989) eKLR.
B. Background
8. The record before this Court shows that the Applicant was initially charged with the offence of murder contrary to Sections 203 and 204 of the Penal Code. During the pendency of the trial, he entered into a plea bargain agreement with the prosecution pursuant to Section 137H of the Criminal Procedure Code.
9. The agreement was adopted by the High Court, and the Applicant pleaded guilty to the lesser offence of manslaughter contrary to Sections 202 and 205 of the Penal Code.
10. The agreed facts disclosed that on 10 March 2021, the Applicant became involved in a confrontation with the deceased. What began as a verbal disagreement escalated into a physical fight during which the Applicant drew a knife and stabbed the deceased in the chest. The deceased was rushed to hospital but succumbed to the injuries six days later. Following the plea bargain, the Applicant was convicted on his own plea of guilty.
11. The trial court called for a pre-sentence report prior to his sentencing. The learned Judge considered the Applicant's mitigation, his age, his status as a first offender, his expression of remorse, the victims' views, the nature of the offence, and the objectives of sentencing.
12. The Court also considered Section 333(2) of the Criminal Procedure Code and expressly stated that it had taken into account the period the Applicant had spent in custody before sentencing. After weighing the aggravating and mitigating factors, the Court sentenced the applicant to serve ten (10) years imprisonment.
13. The Applicant has approached this Court by way of criminal revision seeking a review of the sentence. In a matter where an accused person has pleaded guilty to a charge and the plea is unequivocal, the accused person can only challenge the legality of the sentence imposed by the trial court by dint of the provisions of Section 137F(1)(h) of the Criminal Procedure Code. That he can only do by approaching the Court of Appeal and not this court.
14. The Applicant's case was founded on four principal arguments. Firstly, that the High Court possesses unlimited original jurisdiction under Article 165 of the Constitution and should therefore entertain his application notwithstanding the provisions of the Criminal Procedure Code.
15. Secondly, he submitted that Section 333(2) of the Criminal Procedure Code entitles him to further consideration of the period spent in custody before conviction.
16. Thirdly, he argued that his rehabilitation, good conduct and health condition justify conversion of the remaining sentence into probation.
17. Finally, he relied on the Chief Justice's directions concerning sentence review and prison decongestion as demonstrating the Judiciary's commitment to facilitating rehabilitation of deserving offenders.
18. The Respondent, submitted that the Court cannot reach the merits of the application because it lacks jurisdiction. According to the Respondent, Sections 362 and 364 of the Criminal Procedure Code are explicit that revision is available only in respect of proceedings before subordinate courts. Since the impugned sentence was imposed by the High Court, a court of concurrent jurisdiction cannot purport to revise or alter that decision. The Respondent further argues that the Applicant's proper remedy, if dissatisfied with the sentence, lay in an appeal to the Court of Appeal and not by way of criminal revision.
DETERMINATION
19. The law on jurisdiction is now firmly settled. In Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1 , the Court of Appeal emphatically held that:
"Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of proceedings..."
That principle has remained the bedrock of Kenyan jurisprudence for over three decades. It underscores the reality that jurisdiction is not a matter of convenience or discretion. Rather, it is a legal mandate donated by the Constitution or legislation.
20. The Supreme Court reaffirmed this principle in Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR , where it stated:
"A Court's jurisdiction flows from either the Constitution or legislation or both. A Court 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."
21. The significance of that decision is that courts cannot enlarge their own jurisdiction merely because doing so appears fair or desirable. Jurisdiction must be founded within the four corners of the Constitution or statute.
22. This Court therefore turns to the statutory provisions invoked by the Applicant. Section 362 of the Criminal Procedure Code provides:
"The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purposes of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order..."
23. Similarly, Section 364 of the Criminal Procedure Code provides that in the case of proceedings in a subordinate court , the High Court may exercise the specified appellate powers on revision.
24. The language employed by Parliament is explicit. The revisionary jurisdiction of the High Court is confined to proceedings conducted before subordinate courts. Parliament deliberately chose those words. If parliament intended to have the High Court to revise its own decisions or those of courts of equal status, nothing would have been easier than for parliament to say so.
25. Courts are required to give effect to the plain meaning of legislation unless such an interpretation leads to absurdity or violates the Constitution. There is nothing absurd or unconstitutional about limiting revision to subordinate courts. Indeed, the limitation preserves the hierarchical structure established by the Constitution and the appellate system created by statute.
26. The Applicant was convicted and sentenced by the High Court after entering into a plea bargain agreement. The sentence which he seeks to revise was imposed by Mutende J., a Judge exercising the same jurisdiction as this Court. It is a fundamental principle of judicial administration that a court of concurrent jurisdiction cannot sit on appeal or revision over the decision of another court of equal status unless the law expressly permits it.
27. If a Judge of the High Court were to be permitted to revise the judgment or sentence of another Judge of the High Court, it would undermine the doctrine of judicial hierarchy and create uncertainty in the administration of justice. Litigants dissatisfied with one High Court decision would simply invite another High Court Judge to reach a different conclusion through revision, thereby rendering the appellate structure redundant.
28. The courts cannot engage in such adventures for that would sound a death knell to judicial harmony in decision making and such action could very easily lead to unprecedented chaos in the administration of justice.
29. Consequently, this court finds that the court lacks jurisdiction to entertain the instant application and it is hereby dismissed.
30. It is so ordered.
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1. Before this Court is an undated Notice of Motion seeking revision of the sentence imposed upon him by the High Court in Criminal Case No. E021 of 2021 . The application is expressed to be brought under Articles 22, 25(c), 27(1), 50(1)(2)(p)(b)(c), 159(2), (d),165 (3)(7) of the Constitution, Section 333 (2), 362 and 364 of the Criminal procedure code.
2. The Applicant asks this Court to revise the sentence of ten (10) years' imprisonment imposed upon him following his conviction for the offence of manslaughter, and to either reduce the remaining custodial term or substitute it with a probation order. He further seeks to have this Court consider the period he spent in pre-trial custody and have the same discounted from the 10 years imprisonment.
3. The applicant has posited that he is now rehabilitation and has suffered ill health in prison. The applicant further implores this court to consider the Chief Justice's directions issued on 7 December 2022 regarding sentence review and prison decongestion.
4. The application was opposed by the Director of Public Prosecutions. The Respondent contended that the application is incompetent because this Court lacks jurisdiction to revise a sentence imposed by another Judge of the High Court.
5. The respondent submitted that Sections 362 and 364 of the Criminal Procedure Code confer revisionary jurisdiction only over proceedings before subordinate courts and not over decisions of courts of concurrent jurisdiction. The Respondent therefore urged the Court to dismiss the application in limine .
6. The application raises an important question regarding the scope of the High Court's revisionary jurisdiction. Although the Applicant has presented several grounds in support of his request, the Court must first determine whether it possesses the legal authority to entertain the application.
7. Jurisdiction is not a procedural technicality capable of being overlooked in the interests of justice. It is the legal foundation upon which every judicial decision rests. Without jurisdiction, a court has no authority to examine the merits of a dispute, however compelling the facts may appear. See Owners of Motor “Lillian S” vs Caltex Oil (k) Ltd (1989) eKLR.
B. Background
8. The record before this Court shows that the Applicant was initially charged with the offence of murder contrary to Sections 203 and 204 of the Penal Code. During the pendency of the trial, he entered into a plea bargain agreement with the prosecution pursuant to Section 137H of the Criminal Procedure Code.
9. The agreement was adopted by the High Court, and the Applicant pleaded guilty to the lesser offence of manslaughter contrary to Sections 202 and 205 of the Penal Code.
10. The agreed facts disclosed that on 10 March 2021, the Applicant became involved in a confrontation with the deceased. What began as a verbal disagreement escalated into a physical fight during which the Applicant drew a knife and stabbed the deceased in the chest. The deceased was rushed to hospital but succumbed to the injuries six days later. Following the plea bargain, the Applicant was convicted on his own plea of guilty.
11. The trial court called for a pre-sentence report prior to his sentencing. The learned Judge considered the Applicant's mitigation, his age, his status as a first offender, his expression of remorse, the victims' views, the nature of the offence, and the objectives of sentencing.
12. The Court also considered Section 333(2) of the Criminal Procedure Code and expressly stated that it had taken into account the period the Applicant had spent in custody before sentencing. After weighing the aggravating and mitigating factors, the Court sentenced the applicant to serve ten (10) years imprisonment.
13. The Applicant has approached this Court by way of criminal revision seeking a review of the sentence. In a matter where an accused person has pleaded guilty to a charge and the plea is unequivocal, the accused person can only challenge the legality of the sentence imposed by the trial court by dint of the provisions of Section 137F(1)(h) of the Criminal Procedure Code. That he can only do by approaching the Court of Appeal and not this court.
14. The Applicant's case was founded on four principal arguments. Firstly, that the High Court possesses unlimited original jurisdiction under Article 165 of the Constitution and should therefore entertain his application notwithstanding the provisions of the Criminal Procedure Code.
15. Secondly, he submitted that Section 333(2) of the Criminal Procedure Code entitles him to further consideration of the period spent in custody before conviction.
16. Thirdly, he argued that his rehabilitation, good conduct and health condition justify conversion of the remaining sentence into probation.
17. Finally, he relied on the Chief Justice's directions concerning sentence review and prison decongestion as demonstrating the Judiciary's commitment to facilitating rehabilitation of deserving offenders.
18. The Respondent, submitted that the Court cannot reach the merits of the application because it lacks jurisdiction. According to the Respondent, Sections 362 and 364 of the Criminal Procedure Code are explicit that revision is available only in respect of proceedings before subordinate courts. Since the impugned sentence was imposed by the High Court, a court of concurrent jurisdiction cannot purport to revise or alter that decision. The Respondent further argues that the Applicant's proper remedy, if dissatisfied with the sentence, lay in an appeal to the Court of Appeal and not by way of criminal revision.
DETERMINATION
19. The law on jurisdiction is now firmly settled. In Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1 , the Court of Appeal emphatically held that:
"Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of proceedings..."
That principle has remained the bedrock of Kenyan jurisprudence for over three decades. It underscores the reality that jurisdiction is not a matter of convenience or discretion. Rather, it is a legal mandate donated by the Constitution or legislation.
20. The Supreme Court reaffirmed this principle in Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR , where it stated:
"A Court's jurisdiction flows from either the Constitution or legislation or both. A Court 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."
21. The significance of that decision is that courts cannot enlarge their own jurisdiction merely because doing so appears fair or desirable. Jurisdiction must be founded within the four corners of the Constitution or statute.
22. This Court therefore turns to the statutory provisions invoked by the Applicant. Section 362 of the Criminal Procedure Code provides:
"The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purposes of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order..."
23. Similarly, Section 364 of the Criminal Procedure Code provides that in the case of proceedings in a subordinate court , the High Court may exercise the specified appellate powers on revision.
24. The language employed by Parliament is explicit. The revisionary jurisdiction of the High Court is confined to proceedings conducted before subordinate courts. Parliament deliberately chose those words. If parliament intended to have the High Court to revise its own decisions or those of courts of equal status, nothing would have been easier than for parliament to say so.
25. Courts are required to give effect to the plain meaning of legislation unless such an interpretation leads to absurdity or violates the Constitution. There is nothing absurd or unconstitutional about limiting revision to subordinate courts. Indeed, the limitation preserves the hierarchical structure established by the Constitution and the appellate system created by statute.
26. The Applicant was convicted and sentenced by the High Court after entering into a plea bargain agreement. The sentence which he seeks to revise was imposed by Mutende J., a Judge exercising the same jurisdiction as this Court. It is a fundamental principle of judicial administration that a court of concurrent jurisdiction cannot sit on appeal or revision over the decision of another court of equal status unless the law expressly permits it.
27. If a Judge of the High Court were to be permitted to revise the judgment or sentence of another Judge of the High Court, it would undermine the doctrine of judicial hierarchy and create uncertainty in the administration of justice. Litigants dissatisfied with one High Court decision would simply invite another High Court Judge to reach a different conclusion through revision, thereby rendering the appellate structure redundant.
28. The courts cannot engage in such adventures for that would sound a death knell to judicial harmony in decision making and such action could very easily lead to unprecedented chaos in the administration of justice.
29. Consequently, this court finds that the court lacks jurisdiction to entertain the instant application and it is hereby dismissed.
30. It is so ordered.
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