Joseph Nthiga Munyi v Republic

5. The respondent argues that the ofience the applicant was convicted of is a felony which attracts life imprisonment as such, the sentence imposed by the trial court therefore was. The substituted sentence of twenty (20) years imprisonment is still legal in that it was reviewed by the High Court. The respondent further argues that the recent decisions of the Supreme Court have held that life imprisonment is the right sentence for convicted persons in the ofience of defilement. As such, there is no basis for reviewing the sentence the applicant is currently serving. The Respondent’s Submissions. 6. The respondent reiterates the contents of her affidavit and submits that the instant application is an abuse of the court process and ought to be dismissed. To support her submissions the respondent cites the decisions in Supreme Court Petition No. E002 of 2024 Republic vs Evans Nyamari Ayaki and Supreme Court Petition No. E013 of 2024 Republic vs Julius Kitsao Manyeso. The Law 7. It is a constitutional right of a convicted person to have his sentence reviewed under this court’s powers provided for by Article 165(6) of the Constitution. The High Court has power to review a decision by a subordinate court. Article 165(6) under the said provision of the law. 8. The applicant has come to this Honourable court by way of review provided for under Article 50 of the Constitution. It provides:(2) Every accused person has the right to a fair trial, which includes the right:(q) 9. If convicted, to appeal to, or apply for review by a higher court as prescribed by law. In the case of Samuel Kamau Macharia vs 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.” 10. The applicant herein was convicted of the ofience of defilement by the trial court in Gatundu CM Criminal (S.O.) Case No. 4 of 2019 and sentenced to life imprisonment. He appealed to the High Court in Kiambu being Criminal Appeal No. 29 of 2020 and the conviction was upheld and sentence of life imprisonment substituted with a sentence of 20 years imprisonment which was to run from the date of arraignment, 19th February 2019. 11. Article 50(2)(q) of the Constitution provides that a convicted person is entitled to review of any order or sentence by a higher court. Alternatively, such convicted person can appeal against the judgment of the trial court. 12. The wording of Article 50(2) (q) us such that a convicted person can only choose of the options stipulated therein, that is either to apply for review to a higher court or to appeal. The applicant has already appealed and benefited in the review of his sentence downwards and cannot take a second bite in a review application. 13. The Supreme Court has recently delivered several judgments which declared that convicts in defilement are liable to be sentenced to life imprisonment under Section 8 of the Sexual Offences Act. These decisions include the cases of Republic vs Kitsao Manyeso Petition No. E 013 of 2024 and Republic vs Evans Nyamari Ayaki Petition No.E 002 of 2024. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19760/eng@2025-06-26 2

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14. Consequently, I find this application misconceived and incompetent and it is hereby struck out. 15. It is hereby so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED THIS 26TH DAY OF JUNE 2025. F. MUCHEMI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19760/eng@2025-06-26 3

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