Kiprop Kandie v Republic

5. Still dissatisfied with the sentence of the High court, the convict has approached this court seeking sentence review arguing that this court has competent jurisdiction to hear and determine this application under Article 165(3)(b) of the Constitution of Kenya, 2010. That under 50 (2)(p)(q) of the Constitution of Kenya, an applicant has a right to benefit from the least severe sentence and to have his sentence reviewed. 6. He states that a sentence of life imprisonment contravenes section 216 and 389 of the Criminal Procedure Code. That under the provisions of the Constitution of Kenya 2010 and High Court practice and procedure Rules, this court has power to hear and determine infringement of fundamental rights and award remedies. He stated that his prayer is for re-sentence and he has been in prison for 9 years now. 7. The prosecution counsel Ms. Ratemo submitted orally that the applicant’s appeal No. 83 of 2017 was dismissed by the High Court and she is aware that the court of appeal set precedence on life sentence but she maintains that this court do not have jurisdiction to set aside sentence by a court of concurrent jurisdiction and the law does not act retrospectively. That since he had filed appeal, he can move to the Court of Appeal for resentence. Determination 8. The Applicant argues that this Court has jurisdiction to hear to determine his application for sentence review. The law on jurisdiction was stated by the Supreme Court in Samuel Kamau Macharia & another v Kenya Commercial Bank Ltd & 2 others, Application No. 2 of 2011 thus: “ A court’s jurisdiction fiows from either the Constitution or legislation or both. Thus, 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…” 9. It is not disputed that the Applicant had his appeal heard and determined by this Court. The Applicant having appealed to this Court and his appeal determined did not pursue further appeal to the Court of Appeal. The issue is whether this Court is seized with jurisdiction to review its own order and sentence. The Supreme Court considered the issue of review of judgements and orders in Fredrick Otieno Outa v Jared Odoyo Okello & 3 others [2017] eKLR and held that: “ …we hold that as a general rule, the Supreme Court has no jurisdiction to sit on appeal over its own decisions, nor to review its decisions, other than in the manner already stated in paragraph (90) above. However, in exercise of its inherent powers, this Court may, upon application by a party, or on its own motion, review, any of its Judgments, Rulings or Orders, in exceptional circumstances, so as to meet the ends of justice. Such circumstances shall be limited to situations where: i. the Judgment, Ruling, or Order, is obtained, by fraud or deceit; ii. the Judgment, Ruling, or Order, is a nullity, such as, when the Court itself was not competent; iii. the Court was misled into giving Judgment, Ruling or Order, under a mistaken belief that the parties had consented thereto; iv. the Judgment or Ruling, was rendered, on the basis of a repealed law, or as a result of, a deliberately concealed statutory provision.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/2372/eng@2024-03-05 2

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10. I take note of the fact that after this court made determination on appeal filed by the applicant, there has been change of jurisprudence being in Malindi Court of Appeal Criminal Appeal No. 12 of 2021, Julius Kitsao Manyeso Versus Republic. And in view of change in jurisprudence, the applicant has a right to approach this court for review of sentence. I have considered probation oficer’s report and I am of the view that the applicant herein should benefit from change of jurisprudence declaring life sentence unconstitutional. The applicant therefore deserves determinate sentence. I have taken into consideration the age of the child who was the victim herein and impose 30 years imprisonment. 11. Final orders:1. Life imprisonment is hereby set aside. 2. Applicant to serve 30 years imprisonment. 3. period served in remand to be computed in sentence above. RULING DELIVERED, DATED AND SIGNED VIRTUALLY AT KABARNET THIS 5TH DAY OF MARCH 2024. ..................... RACHEL NGETICH JUDGE In the presence of: Applicant present. Ms Ratemo for State. Kibet – Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/2372/eng@2024-03-05 3

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