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Case Brief · caselaw.co.ke
High CourtDismissedNot stated in judgment (Notice of Motion filed 13/11/2019)· [2019] KEHC 232 (KLR)

Petitioner v Republic

High Court of Kenya
11 December 2019
Njoki Susanna NdunguA.K. NDUNG'U
803 words in judgment
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The bottom line

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A lower court cannot overturn a sentence set by the Court of Appeal, and requests for sentence reduction must go to prison authorities.

What this practically means

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Executive summary

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An unrepresented convict filed an undated Notice of Motion and petition in the High Court at Kisii seeking a declaration that his rights under Articles 22, 27(1)(2), 28, 50(2)(p) and 165 of the Constitution were breached, remission and reduction of his 20-year sentence, a sentence reckoned from the date of his arrest, probation, and waiver of costs as a pauper. He had been sentenced to death by the High Court after a murder trial; on appeal, the Court of Appeal upheld the conviction but set aside the death sentence, substituting 20 years' imprisonment to run from the date of the High Court judgment, applying the Supreme Court's Muruatetu decision on the unconstitutionality of the mandatory death sentence under section 204 of the Penal Code. Justice A.K. NDUNG'U framed the sole issue as whether the 20-year sentence should be set aside and substituted with a sentence running from arrest or probation. He held that the Court of Appeal had already restored the petitioner's constitutional right to sentencing discretion, that the sentence was expressly to run from the date of the High Court judgment, and that the prayers amounted to asking the High Court to sit on appeal over the Court of Appeal, which it had no jurisdiction to do. On remission, the court adopted Odunga J's reasoning in Sammy Musembi Mbugua, holding remission is for prison authorities under section 46 of the Prisons Act. The petition and motion were dismissed on 11 December 2019.

Key legal issues

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01

Jurisdiction to vary a Court of Appeal sentence

Holding

The High Court lacks jurisdiction to interfere with or vary a sentence imposed by the Court of Appeal.

Reasoning

The Court of Appeal had already cured the constitutional defect in the mandatory death sentence by substituting 20 years' imprisonment, expressly directing it to run from the date of the High Court judgment. The petitioner's prayers would amount to an appeal against that decision, which the High Court cannot entertain.

p. 2
02

Remission of sentence

Holding

Remission is a matter for prison authorities under section 46 of the Prisons Act, not the court.

Reasoning

The court adopted Odunga J's reasoning distinguishing the right to remission from the power to grant it, which remains governed by section 46 of the Prisons Act, including the exclusion of remission for robbery with violence offenders being unconstitutional only in part.

p. 2

Legal principles established

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  • A first-instance court cannot sit on appeal over a sentence imposed by the Court of Appeal.
  • The power to grant remission is exercised by prison authorities under section 46 of the Prisons Act; the right to remission must be exercised as provided by that section.

Court orders

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  1. 1.The Notice of Motion and Petition are dismissed

Authorities

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Legislation

  • Constitution of KenyaArticles 22, 27(1)(2), 28, 50(2)(p), 165
  • Penal Codesection 204; section 296(2)
  • Prisons Actsection 46(1)

Cases cited (2)

  • Francis Muruatetu & Others –Vs- Republic and Others
    Petition No. 4 of 2015

    Declared the mandatory death sentence under section 204 of the Penal Code unconstitutional; courts have discretion in sentencing.

  • Sammy Musembi Mbugua and Others –Vs- Attorney General and Kenya Prison Service

    Distinction between the right to remission and the power to grant it under section 46 of the Prisons Act.

On appeal from
Court of Appeal
Jurisdiction invoked
Articles 22, 27(1)(2), 28, 50(2)(p) and 165 of the Constitution invoked by the petitioner; court found it lacked jurisdiction to interfere with the Court of Appeal sentence

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Petitioner v Republic", Case Analysis (2019). Not stated in judgment (Notice of Motion filed 13/11/2019). Source:

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.