Daniel Gitau Maina v Republic

exhausted his appeal options and thus he cannot come back again for revision of his sentence before the High Court to seek for a remedy. 5. The respondent states that the applicant is just testing the waters or just forum shopping which actions should be discouraged by courts to deter other potential applicants with similar applications. 6. Parties put in written submissions. The Applicant’s Submissions. 7. The applicant relies on Section 333(2) of the Criminal Procedure Code and the cases of Bethwell Wilson Kibor v Republic (2009) eKLR and Vincent Sila Jona & 87 Others v Kenya Prisons Service & 2 Others (2021) eKLR and submits that the trial magistrate did not factor in the period of 11 months and 6 days he spent in custody prior to his conviction. The Respondent’s Submissions. 8. The respondent reiterates the contents of their affidavit in the submissions. The Law 9. This court is empowered by Article 165(6) of the constitution of Kenya to review a decision by a subordinate court. Article 165(6) provides:The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court. 10. The applicant has come to this Honourable court by way of review provided for under Article 50 (2) (q)of the constitution. It provides:(2) Every accused person has the right to a fair trial, which includes the right:(q) 11. If convicted, to appeal to, or apply for review by a higher court as prescribed by law. In the case of Samuel Kamau Macharia v KCB & 2 Others, Civil Application No. 2 of 2011, it was stated:“ A court’s jurisdiction fiows from either the constitution or legislation or both. Thus, a court of law 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.” 12. The applicant herein was convicted of the ofience of defilement by the trial court in Thika CM Criminal Case No. 1001 of 2014 and sentenced to serve 20 years imprisonment. He appealed to the High Court in Kiambu in Criminal Appeal No. 41 of 2018 which appeal was dismissed on 20th December 2018. The applicant then filed a second appeal in the Court of Appeal Nairobi Criminal Appeal No. 55 of 2020 which was dismissed on 12th May 2023 thereby upholding the conviction and sentence. 13. Article 50(2)(q) of the constitution is of relevance herein. The applicant after conviction had two options: to appeal or to apply for review in a higher court. He chose to appeal until the Court of Appeal and cannot have a second bite of cherry under Article 50(2) (q). He has exhausted his constitutional rights. Litigation must come to an end and this is the purpose served by provisions of the constitution and statute law that limit the number of times a litigant can approach the court. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12612/eng@2025-09-09 2

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14. It is important to state that the applicant having lodged an appeal at the Court of Appeal, he cannot apply a reverse gear to restart the litigation process afresh. Such a move is contrary to the law. It must be born in mind that the two appeal courts addressed the issues of conviction and sentence and this court has no power to address the issue of review as sought in this application. 15. I find this application misconceived and incompetent and it is hereby struck out. 16. It is hereby so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 9th DAY OF SEPTEMBER 2025. F. MUCHEMI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12612/eng@2025-09-09 3

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