Joshua Kiarie Njuguna v Republic

2021. The High Court however considered the application under Section 333(2) of the Criminal Procedure Code and ruled that the period spent in custody should be taken into account on the computing of the sentence. The application 5. The Appellant has now filed a Notice of Motion dated 9th May 2024 requesting for review of his sentence. 6. The Respondent/State did not file a response to the application but instead requested that the Trial Court, the High Court Appeal and the Court of Appeal judgments be availed to the court and to them for perusal and consideration on the Applicant’s application herein. 7. A look at the record shows that only a copy of the judgement in High Court Criminal Appeal No. E020 of 2020 was availed to court. There is no indication whether the Applicant filed a second appeal to the Court of Appeal Submissions 8. The application was directed to be canvassed by way of written submissions. Both parties complied, the applicant’s submissions are undated whilst the Respondent’s submissions are dated 19/11/2024. 9. The Applicant was explicit that the review is confined to the sentence imposed on him, and that it is premised on the grounds and mitigating factors set out in his application. He invited the court to take into consideration that he has engaged in rehabilitative programs while in prison which have reformed him and improved his overall character. He attached copies of the Certificates he has so far attained while in prison. 10. Learned counsel for the Respondent, Ms. Agatha Abang, opposed the application. In her submissions, she confirmed that the Applicant was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act; that upon conviction he was sentenced to 20 years imprisonment. He appealed against conviction and sentence to the High Cort and the appeal was dismissed int its entirety. The High Court however considered the application under Section 333(2) of the Criminal Procedure Code and ruled that the period spent in custody should be taken into account on the computing of the sentence. Analysis and Determination 11. I have given careful consideration to the application and the parties’ rival submissions thereto. 12. Accordingly, I have perused the appeal judgment before this court in Machakos High Court Appeal No. E020 of 2021. 13. There is no indication that the Applicant filed a second appeal to the Court of Appeal. He has now applied to this High Court seeking further review or resentencing. 14. In my considered view, the Applicant ought to have appealed against the appeal judgment and/or sentence to the Court of Appeal as this court became functus officio once the High Court delivered the judgment subject of the application herein. The Court of Appeal has the jurisdiction over the same in exercise of its appellate jurisdiction under Article 164(3) of the Constitution and Section 379(1) of the Criminal Procedure Code. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14308/eng@2025-05-22 2

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15. I have said enough to demonstrate that this court does not have jurisdiction to entertain the instant application. The court therefore downs its tools (See the owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR). 16. In consideration of the decision of Supreme Court in the Muruatetu’s Case and in consideration of the minimum sentence set by the Sexual Offence Act and in consideration of the applicant’s application, the sentence of 20 years imprisonment is legal and lawful. 17. It is trite law that sentence review, even on appeal, ought not to be easily done; and that certain factors must be present to warrant such intervention. Some of these factors were discussed in the case of Ogalo s/o Owuora v Republic [1954] 21 EACA 270, as follows: “ …The court does not alter a sentence on the mere ground than if the member of the court had been trying the appellant, they might have passed a somewhat different sentence and it will not ordinarily interfere with the discretion exercised by a trial judge unless as was said in James v Republic [1950] 18 EACA 147, it is evident that the judge has acted upon some wrong principle or overlooked some material factor. To this we would also add a third criterion namely that the sentence is manifestly excessive in view of the circumstances of the case.” 18. Similarly, in Bernard Kimani Gacheru v Republic [2002] eKLR, the Court of Appeal restated that: “ It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor or took into account some wrong material, or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist”. 19. In this instance, it is common ground that the sentence imposed by the subordinate court has already been reconsidered on appeal and dismissed by a court of concurrent jurisdiction. Accordingly, the only avenue open for the applicant was to appeal the decision to the Court of Appeal. The question of further consideration by this court cannot arise. In this connection, I agree entirely with the expressions of Hon. Aburili, J. in Constitutional Petition No. 5 of 2018 Daniel Otieno Oracha v Republic [2019] eKLR, that: “ The law abhors the practice of a judge sitting to review a judgment or decision of another judge of concurrent jurisdiction. Reduction of sentence could only be considered by the Court of Appeal or if this court was sitting on appeal of a judgment of the subordinate court or if the petitioner was seeking for resentence after exhausting appeal mechanisms and not otherwise”. 20. The cited judgment of Hon. Aburili, J made in accordance with the law has not been challenged. This court cannot sit on appeal of its own judgment or of court of concurrent competent jurisdiction when the Applicant had an opportunity to ventilate his grievance before the Court of Appeal even if it was to challenge sentence alone. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14308/eng@2025-05-22 3

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21. Cases ought to be handled procedurally in the right forum. This is because the rule of the thumb that superior courts cannot sit in review/appeal over decisions of their peers of equal and competent jurisdiction much less those courts higher than themselves and that matters falling under the exclusive jurisdiction of Supreme Court under Article 163(3) cannot be dealt with by the High Court. 22. Therefore, the applicant’s prayer for his sentence to be reviewed further and be substituted with noncustodial sentence is indeed misconceived and I so find. In the result, the application for sentence review is hereby dismissed for want of jurisdiction. 23. Orders accordingly. File closed. RULING WRITTEN, DATED & SIGNED AT MACHAKOS THIS 22ND MAY 2025 NOEL I. ADAGI JUDGE DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 22ND MAY 2025 In the presence of: In person.............. for Appellant Ms. Agatha.................. for Respondent Milly............ Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14308/eng@2025-05-22 4

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