Michael Kiongo Waititu v Republic

4. The respondent opposed the application and argues that the applicant has exhausted all the avenues of appeal and the issue of sentencing was addressed by both the High Court and Court of Appeal. The Law 5. 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. 6. 7. 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) 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.” 8. The record shows that the applicant herein was convicted by the Resident Magistrate Court Gatundu in Criminal Case No. 237 of 2008 with the ofience of defilement contrary to Section 8(1) as read with 8(2) of the Sexual Offences Act. He was sentenced to life imprisonment and being aggrieved by the conviction and sentence appealed to the High Court Nairobi in Criminal Appeal No. 530 of 2009. The court heard the appeal and dismissed it on 17th April 2013 for lack of merit. He then appealed to the Court of Appeal Nairobi in Criminal Appeal No. 64 of 2013 and the appeal was dismissed on 8th July 2016. 9. Under Article 50 (2), a convicted person has a right to apply to a higher court for review or to appeal. The applicant has exercised the right of appeal on the two available levels and failed. The law does not allow the applicant to seek review having exhausted his rights under Article 50 (2). 10. The Supreme Court judgments of Republic vs Julius Kitsao Manyeso Petition No. E013 of 2024 KESC (KLR) and that of Republic vs Evans Nyamari Ayako Petition No. E002 of 2024 KESC 20 KLR whereas the Court overturned court of Appeal decisions allowing review of sentence for convicts in defilement cases. It was held that the only lawful sentence for defilement is the sentence prescribed in Section 8 is life imprisonment. This court has no power of interfering with the sentence of life imprisonment for defilement in a case of this nature to give a lesser sentence as the applicant has sought. 11. Consequently, I find this application misconceived and improperly before the court. 12. For the foregoing reasons, this application is, hereby struck out. 13. It is hereby so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 26TH DAY OF JUNE 2025. F. MUCHEMI https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19765/eng@2025-06-26 2

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JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19765/eng@2025-06-26 3

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