Peter Odhiambo Okwama v Republic

5. The respondent states that the applicant is just testing the waters and trying his luck and kind of forum shopping which actions should be discouraged to deter other potential applicants with similar applications. The Law 6. 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." 7. 8. 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) 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.” 9. The applicant herein was convicted of the offence of defilement contrary to Section 8 (1) and 8 (2) of the Sexual Offences Act in Thika CM Criminal Case No 5313 of 2011 and sentenced to life imprisonment. He appealed to the High Court, Nairobi Criminal Appeal No 197 of 2012 which was dismissed on 19th March 2015. The applicant then filed a second appeal in the Court of Appeal Nairobi Criminal Appeal No.50 of 2021 which was similarly dismissed on 26th May 2023. The two appeal courts upheld both the conviction and sentence. This is noted in the judgments of the two appeal courts. 10. The provisions of 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 all the way to the Court of Appeal. As such, he cannot have a second bite of his cherry under Article 50(2) (q). It goes without saying that the applicant 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. By filing this application, the applicant is wasting precious judicial time and is acting contrary to the law. 11. It is important to state that the applicant having lodged an appeal at the Court of Appeal, cannot come back to this court to seek resentencing as this court cannot review the orders of the Court of Appeal which is higher in hierarchy. 12. The Supreme Court has held in recent decisions like Republic v Julius Manyeso Petition No E013 of 2024 that the only sentence that ought to be imposed on a convict of the offence of defilement is the one provided under Section 8 of the Sexual Offences Act, which is life imprisonment. In the current jurisprudence, there exits no room to impose a sentence different to life imprisonment. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12647/eng@2025-09-10 2

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13. Consequently, I find this application misconceived and incompetent and I hereby strike it out with no orders as to costs. 14. It is hereby so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 10th DAY OF SEPTEMBER 2025, F. MUCHEMI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12647/eng@2025-09-10 3

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