Christopher Gachoka Ndichu v Republic

4. The respondent filed grounds of opposition dated 6th May 2025 and argues that the instant court became functus officio and has no jurisdiction to resentence since a court of concurrent or similar jurisdiction, that is, Murang’a High Court vide Appeal No. 633 of 2010 upheld the sentence of the trial court. The respondent further argues that asking the current court to resentence is equivalent to asking the court to sit as an appellate court against its own judgment and determine whether the appeal has chances of success. 5. The respondent states that the issue of sentence has been dealt with conclusively to the effect that the appeal on conviction and sentence had no merit in the High Court. The respondent further states that the applicant is just testing the waters and trying his lack thus forum shopping which actions should be discouraged to deter other potential applicants with similar applications. 6. Parties put in written submissions. The Applicant’s Submissions. 7. The applicant relies on the cases of R v Otieno (1983), Francis Muruatetu & Another v Republic [2017] eKLR and Michael Kalewa v Republic [2016] eKLR and submits that he is a first offender, he is remorseful and has undergone various rehabilitative programmes. The applicant further submits that life imprisonment has been declared unconstitutional and prays that the court grant him a determinate sentence. The Respondent’s Submissions 8. The respondent reiterates what she deponed in her affidavit and submits that Section 8(2) of the Sexual Offences Act is legal and constitutional thus the life sentence is legal and according to law. The respondent relies on the cases of Supreme Court Petition No. E002 of 2024 Republic v Evans Nyamari Ayako and Supreme Court Petition No. E013 of 2024 Republic v Julius Kitsao Manyeso to support her contentions. The Law 9. 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. 10. 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) 11. If convicted, to appeal to, or apply for review by a higher court as prescribed by law. In the case of Samuel Kamau Macharia v 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.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19769/eng@2025-06-12 2

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12. The applicant herein was convicted in the Chief Magistrate Court in Thika in Criminal Case No. 1373 of 2010 with five counts of the offence of defilement contrary to Section 8(1) as read with 8(2) of the Sexual Offences Act. The applicant was sentenced to life imprisonment and being aggrieved by the conviction and sentence appealed to the High Court in Murang’a being Criminal Appeal No. 311 of 2013. The court heard the appeal and dismissed it on 28th November 2013. The High Court affirmed the sentence of life imprisonment noting that they were no sufficient grounds to interfere with the sentence and that the sentence of life was lawful. 13. Article 50(2)(q) of the Constitution is of relevance here and has been cited herein. The import of the provision is that a convict is entitled to review in a higher court only if he has not filed an appeal. The accused herein has gone through the appeal process and as such he is not entitled to apply for review. It is further provided by the law that this court being a court of concurrent jurisdiction with the High Court Murang’a cannot review the judgment and sentence of that court. 14. The applicant has cited the case of Manyeso v Republic Criminal Appeal No. 12 of 2021 where the Court of Appeal held that a convict in defilement was entitled to review of sentence to a term of imprisonment where life imprisonment sentence had been imposed by the trial court. This holding has since been overturned by the Supreme Court in SC Petition No. E002 of 2024 Republic v Manyeso where it was held that resentencing under the SC Petition of Francis Karioko Muruatetu has no application in cases of convicts in defilement and robbery with violence. As such, sentences for defilement cases must be in accordance with Section 8 of the Sexual Offences Act. The respondent has cited the Republic v Manyeso case said case in its submissions and argued that the Supreme Court judgment delivered in the year 2025 renders this revision untenable. I totally agree with this position articulated by the respondent. 15. As regards the prayer for review of sentence under section 333 (2) of the Criminal Procedure Code, the Supreme Court decision is clear that the sentence of life imprisonment is the right sentence for defilement under Section 8(1) and (2) of the Sexual Offences Act. As such, review under Section 333 (2) is not applicable herein. It is also important to note that the definition of life imprisonment to mean thirty (30) or forty (40) years by the Court of Appeal was overturned by the Supreme Court in the petition of Republic v Manyeso No. 013 of 2024 in the judgment of the court delivered on 11th April 2025 it was held: “ We therefore find that the Court of Appeal erred in law in substituting the life imprisonment sentence with a 40 – year sentence, thereby usurping the legislative power to define sentences.” The Supreme Court then proceeded to set aside the forty (40) year sentence for defilement and substituted it with life imprisonment. 16. Consequently, I find this application dated 30th August 2024 incompetent and it is hereby struck out with no orders as to costs. 17. It is hereby so ordered. RULING DELIVEREED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 12TH DAY OF JUNE, 2025. HON. F. MUCHEMI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19769/eng@2025-06-12 3

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