Stephen Musyoka Kisule v Republic

seeking sentence review and a declaration that the applicant’s constitutional rights under Articles 25, 28 and 50 (2)(2) have been violated. He deposed that this court has original jurisdiction to hear any matter falling within its jurisdiction as donated by Articles 165(3) (a)& (d) (ii) ,159(2) (d) of the Constitution of Kenya. That he has a constitutional right under Article 47 and 48 of the Constitution 2010, to fair administrative action and access to justice. He invites this court to find his constitutional rights were violated when the trial court did not consider Section 216 of the Criminal Procedure Code and the 2016 provisions of the Judiciary sentencing policy guidelines on arriving at a relative proper sentence. 5. He further deposed that; he was convicted for the offence of defilement Contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006 vide Criminal Case No. S.O 123 of 2012 at Makueni Magistrate’s Court. Upon conviction, he was sentenced to 20 years imprisonment, which sentence was confirmed on appeal by Justice E. Ogola in Machakos Criminal Appeal No. 98 of 2013. He consequently filed the instant application seeking that his sentence of 20 years imprisonment be reviewed; a declaration that his constitutional rights under Articles 25, 28 and 50 (2)(2) have been violated and that an order be made that the period of over 1l years he has spent in custody be deemed enough retribution having been rehabilitated during the said period he has been in custody. That this court has jurisdiction to order for a conditional non-custodial sentence for the remainder of the sentence pursuant to Section 8(2) of the Community Service Order Act. 6. The Respondent/State requested that both the Trial Court’s judgment and the High Court 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 High Court Criminal Appeal No. 98 of 2013 judgement was availed to court. 8. The application was directed to be canvassed by way of written submissions. Both parties complied, the applicant’s submissions are dated 22/05/2024 whilst the Respondent’s submissions are dated 16/01/2025. 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. The applicant also relied on the Judiciary Sentencing Policy Guidelines as to the objectives of sentencing and the various decisions cited by him. He stressed the assertion that he is a first offender and has never been previously charged before any court in Kenya. 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. The Court should also take into consideration the time already spent in custody from the date of his arrest on 29th March 2012 and now spanning almost thirteen (13) years as enough retribution. 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; that he appealed against conviction and sentence, and that the appeal was dismissed. There is no indication that the applicant has filed a second appeal to the Court of Appeal. That this court has no jurisdiction to hear this instant application considering that the court which heard the first appeal is a court of concurrent jurisdiction as this court. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14313/eng@2025-05-14 2

page 2 of 7

11. She relied on the case of Okeno vs Republic (1972) EA 32 where the Court of Appeal for Eastern Africa stated that: “ An appellant on a first appeal is entitled to inspect the evidence as a whole to be subjected to a flesh and exhaustive examination (Pandya V R 1975) E.A 336 and to the appellate court's own decision on the evidence. 1st Appellate court must itself weigh conflicting evidence and draw its own conclusion (Shantilal M Ruwala V. R [1957] E. A 570). It is not the function of a first appellate court merely to scrutinise the evidence to see if there was some evidence to support the lower court's finding and conclusions, it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate 's findings should be supported. In doing so, it should make allowance for the fact that the trial has had the advantage of hearing and seeing the witnesses... ' 12. On the foregoing therefore, the High Court that heard the first appeal fully analysed the evidence and arrived in its own decision to dismiss the appeal and upheld the conviction and sentence. 13. That the Applicant is misguided on the aspect of minimum mandatory sentences as provided for in the Sexual Offences Act No. 3 of 2006. The Respondent appreciate the case law as mentioned by the Applicant but submits that the position has since changed. In the case law cited by the applicant, those directions would seem to apply to the specific applicants who made the applications before this court. It cannot be seen that those directions would apply to any applicant who files applications not related to those applications. Those directions made in the Philip Mueke case and the Petition No. 97 of 2021 Edwin Wachira & 9 Others vs Republic are merely persuasive to this Honourable Court and not binding as they were made by courts of the same jurisdiction as this court. 14. Further, the Supreme Court had pronounced itself on the issue of the minimum mandatory sentences in Sexual Offences in the case of Republic v Joshua Gichuki Mwangi SC Petition No. E018 of 2023 that: “ As we have stated before, this Court recognizes and respects the constitutional competence of courts in the judicial hierarchy to resolve matters before them. We have also settled that for an appeal to lie to the Supreme Court from the Court of Appeal under Article 163(4) (a), the constitutional issue must have first been in issue at both the High Court and then the Court of Appeal for determination... We reiterate the above guiding principle and would dissuade courts below from exceeding their mandate under the erroneous view that they have been confronted by a jurisprudential moment... We therefore find that in this matter the Court of Appeal did offend the principle of stare decisis. Notably, we observe that the Court of Appeal determined that the ratio decidendi in the Muruatetu Case on the unconstitutionality of mandatory sentences could be applied mutatis mutandis to the mandatory nature of minimum sentences provided for in the Sexual Offences Act. In doing so, and with respect, the Court of Appeal failed to abide by the clear principles provided in both the Muruatetu case and the Muruatetu directions in this instance...Before Kenyan courts can determine whether or not the above trends and decisions are persuasive, we reiterate that there ought to be a proper case filed, presented and fully argued before the High Court and escalated through the appropriate channels on the constitutional validity or otherwise of minimum sentences or mandatory sentences other than for the offence of murder. This was our approach and direction in Muruatetu which must remain binding to all courts below. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14313/eng@2025-05-14 3

page 3 of 7

15. The Respondent submitted that the Supreme Court directed that the minimum mandatory sentences are binding on all courts unless the Supreme Court is properly moved as it was in the Muruatetu Case. The minimum mandatory sentences as provided for in the Sexual Offences Act No. 3 of 2006 are constitutional. Thus, the sentence meted out to theApplicant is legal and within the law as per the provided provisions of the law. 16. That the Applicant is not entitled to an application of sentence review as he had not exhausted all his avenues of appeal in the matter. In her submission, no new circumstances have been demonstrated to warrant review. 17. As to whether the applicant’s rights under Article 25, 28 & 50(2)(p) of the Constitution have been violated, the Respondent submitted as follows: -. Article 25 provides for Fundamental Rights and freedoms that may not be limited and states that: Despite any other provision in this Constitution, the following rights and fundamental freedoms shall not be limited— (a) freedom from torture and cruel, inhuman or degrading treatment or punishment; (b) freedom from slavery or servitude; (c) the right to a fair trial; and (d) the right to an order of habeas corpus. Article 28 provides for Human Dignity and states that: Every person has inherent dignity and the right to have that dignity respected and protected Article 50 makes provisions on fair trial. Article 50(2)(p) provides that: (p) p) to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing; 18. The Respondent submits that the applicant's rights were not violated. The applicant has not provided proof of which particular right if any was violated as listed in Article 25. Further, his dignity was preserved and protected throughout the trial and proceeding of the matter in the trial court. Further, the provisions in Article 50(2) (p) do not apply in this case. The prescribed punishments for the section that the Applicant was charged with have not changed. The submissions by the Applicant on his rights violation are mere afterthought as no such proof has been provided to this court to prove otherwise. 18. I have given careful consideration to the application and the parties’ submissions thereto. Indeed, Article 50(2)(q) of the Constitution gives the Court the general power to review the decisions of the subordinate courts. It states: (2) 19. 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. Accordingly, the Court has perused the appeal judgment before this court in Machakos High Court Appeal No. 98 of 2013 delivered by Justice E. Ogola. The said judgment reveals that the applicant was indeed charged with the offence of defilement of a girl contrary to Section 8(1) as read with Section 8(3) https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14313/eng@2025-05-14 4

page 4 of 7

of the Sexual Offences Act. The offence was alleged to have been committed on diverse dates between 13th to 28th day of March 2012 at [particulars withheld] Sub-location in Makueni District within Makueni County and the victim was said to be a girl then aged 14 years. In the alternative, the applicant was charged with indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. 20. The judgment of the appellate court confirms that, the appeal against was dismissed in its entirety. The Court held: “ I am therefore convinced that indeed the Appellant had been with the child and considering that he had locked her in close to two weeks the child must have positively identified the Appellant as the two weeks period was enough for her to identify him. Pursuant to the foregoing paragraph of this judgment, I am satisfied that the honourable trial magistrate did not err in convicting and sentencing the Appellant. I find the appeal herein not merited and the same is herewith dismissed. On sentence this court observes that the 20 years given was not excessive. The conviction and sentence are upheld and the appeal dismissed.” 21. It is this sentence that the applicant seeks this court to review and which is a judgement or orders of a court of concurrent jurisdiction. 22. The jurisdiction of this court is provided for under article 165(3) of the Constitution and includes unlimited original jurisdiction in criminal and civil matters; jurisdiction to enforce bill of rights; appellate jurisdiction; interpretative jurisdiction, supervisory jurisdiction and any other jurisdiction, original or appellate, conferred on it by legislation. Under the said article, this court does not have jurisdiction to review/revise a decision of a court of concurrent jurisdiction. The revisionary jurisdiction of this court is only limited to proceedings of subordinate courts (see section 362-365). 23. The first appellate court herein (Hon. E. Ogola, J) was a court of concurrent jurisdiction with this court. What the applicant is seeking therefore is for this court to review the decision of a court of concurrent jurisdiction. It is my view that in the circumstances herein, this court is bereft of any jurisdiction to review the said decision as doing so would be tantamount to sitting as an appellate court on the judgment of Hon. E. Ogola, J. The law abhors that practice of a judge sitting to review a judgment or decision of another judge of concurrent jurisdiction and a case ought to be handled procedurally in the right forum. As a rule, superior courts cannot sit in review/appeal over decisions of their peers of equal and competent jurisdiction much less those courts higher than themselves. 24. In my 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 (E. Ogola J) 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. 25. It is my considered view that I have said enough to demonstrate that this court does not have jurisdiction to entertain the instant application. The court therefore down its tools (See the owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR). 26. 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. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14313/eng@2025-05-14 5

page 5 of 7

27. 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.” 28. 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. 29. 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”. 30. The judgment of Abida Ali-Aroni 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 Petitioner had an opportunity to ventilate his grievance before the Court of Appeal even if it was to challenge sentence alone. 31. 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. 32. 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. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14313/eng@2025-05-14 6

page 6 of 7

33. Directions may be taken on a date to be given by the court in the event the applicant wishes to pursue the issue of violation of his rights in the Petition filed herein. 34. Orders accordingly. RULING WRITTEN, DATED & SIGNED AT MACHAKOS THIS 14TH MAY 2025 NOEL I. ADAGI JUDGE DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 14TH MAY 2025 In the presence of : ................................................... for Appellant .................................................. ..for Respondent ....................................................... Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14313/eng@2025-05-14 7

page 7 of 7