Benard Mutua v Republic

The Respondent requested that both the Trial Court, the High Court and the Court Appeal judgments be availed to the court and to them for perusal and consideration on the applicant’s application herein. 6. The application was directed to be canvassed by way of written submissions. Both parties complied and filed their respective submissions. The Applicant’s submissions are dated 15th November 2024 although they bangled up in the CTS; his Replying Submissions are dated 27th March 2025 and the Respondent’s submissions are dated 7th March 2025. 7. The Applicant availed the three judgements before this court for consideration. Applicant’s Case 8. The Applicant submitted that this court was seized of competent jurisdiction to hear and determine this matter under the provisions of Article 50(2)(p) and (q) of the Constitution 2010. 9. The Applicant has been sentenced to a mandatory sentence as prescribed by law without due consideration of mitigation or the unique facts and circumstances of his case; he prayed to be granted a definite and lenient sentence; and also prayed that the period spent in remand be taken into consideration pursuant to the provisions of Section 333(2) of the Criminal Procedure Code. Respondent’s Case 10. The Respondent while relying on the principle of "stare decisis" and following the judgment of the Court of Appeal in Criminal Appeal No 111 of 2020, submitted that this court is bound by the judgment of the Court of Appeal and thus has no jurisdiction as regards the conviction and sentence of the Applicant in this matter. Issue for determination 11. I have considered the application and the supporting affidavit thereof as well as the parties’ submissions and the cited law and authorities. The issue I frame for determination is; whether this court has jurisdiction to hear and determine the issue of re-sentencing. 12. I will analyse whether this court has jurisdiction to hear and determine the issues of review of sentence. 13. 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). 14. The first appellate court herein (Judge P. Nyamweya, 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 Judge P. Nyamweya, J. 15. 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. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14388/eng@2025-06-12 2

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16. In my view, the applicant ought to have sought for other orders such as a declaration against his sentence or petition the President for a power of mercy as this court became functus officio once (Judge P. Nyamweya, J) delivered the judgment subject of the application herein. The Court of Appeal having also determined the matter as a second appellate court, the Applicant has exhausted his appeal avenues. 17. 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 downs its tools (See the owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR). 18. Further 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 life sentence is legal and lawful. 19. 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.” 20. 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. 21. 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 is to petition the President of the Republic of Kenya for a power of mercy through the Advisory Committee pursuant to the provisions of Article 133 of the Constitution, 2010.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”. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14388/eng@2025-06-12 3

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22. The judgment of 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 Petitioner had an opportunity to ventilate his grievance before the Supreme Court even if it was to challenge sentence alone. 23. 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. 24. Therefore, the applicant’s prayer for his sentence to be reviewed further and be substituted with a lenient sentence is indeed misconceived and I so find. 25. In the result, the application for sentence review is hereby dismissed for want of jurisdiction. RULING WRITTEN, DATED & SIGNED AT MACHAKOS THIS 12TH JUNE 2025 NOEL I. ADAGI JUDGE DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 12TH JUNE 2025 In the presence of : At Kamiti Maximum ............. for Applicant Ms Agatha .........for Respondent Milly ........ Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14388/eng@2025-06-12 4

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