Nzomo v Republic

7. The Petitioner in support of his petition urged that the trial before the trial court was a mistrial for the reason that the trial court while taking the evidence of the Complainant did not follow the provisions of Section 19 of the Oaths and Statutory Declaration Act in regards to tender children. That the learned trial magistrate arrived at a wrong finding that the child understood the meaning of taking oath and therefore tendered sworn evidence. According to him, the entire trial was contra the provisions of article 25(c) of the Constitution and therefore, the same deserved scrutiny by this court once more. In support of his case, he relied on the case of PWK vs Republic HC Criminal Appeal No. 13 of 2016 where the court found that the trial magistrate arrived at a wrong finding for the reason that voir dire was not conducted correctly. 8. Equally, the Petitioner urged that the Respondent failed to prove its case against him as the evidence before the court did not support the alleged crime committed. To that end, he relied on the case of Remmy Wanyonyi Wanjiku vs Republic, Criminal Appeal No. 53 of 2019 where the court in quashing a finding by the trial court noted that the Complainant did not render proper evidence hence creating need for its disbelief. 9. In the same breadth, the Petitioner urged that this court is possessed of requisite jurisdiction to handle this matter and to that end, relied on the case of Protus Buliba Shikuku vs Attorney General [2012] eKLR where Odunga J. (as he then was) stated that, ‘…article 165(1)(3) (a)(b)(d)(i)(ii) have donated the same mandate without exception to this superior court and for this reason of donation of jurisdiction without exception we feel confident that we are properly seized of the petitioner’s complaints…’ 10. In that regard, this court was urged to allow the petition as prayed and direct that this matter be heard afresh noting that the previous trial before the trial magistrate was unfair. 11. The Respondent on the other hand, opposed the petition by filing grounds of opposition dated 03.03.2026. Therein, this court was urged that the suit herein is misconceived and bad in law for the reason that, the Petitioner appears to review the sentence already determined by this court. That this court previously pronounced itself in the matter and therefore, was functus oficio. This court was therefore urged to down its tools and dismiss the suit in its entirety. 12. I have considered the application and the submissions by the parties herein. The main issue for determination is whether this Honourable Court has jurisdiction to allow the prayers sought. 13. It is not in dispute that having been aggrieved by the judgement of the trial court, the Petitioner filed an appeal which was consequently heard and dismissed for want of merit. In the suit herein, the Petitioner now urges that his trial before the trial magistrate ought to be declared a mistrial for the reason that the trial magistrate failed to find that the Complainant did not understand the meaning of taking an oath and therefore tendered sworn evidence which according to the Petitioner, led to a mistrial. 14. In my considered view, the Petitioner herein is on a disguised mission to review the finding of this court either by way of directing for a retrial and/or setting him at liberty. In John Kamau Gachuha vs Republic [2019] eKLR the Court held as follows; “ …. The applicant merely seeks the imposition of a more lenient sentence. This court has no revision jurisdiction over an appeal it has concluded. The applicant’s only option is to appeal in the Court of Appeal….” 15. From the above case, it follows therefore, that this court does not have jurisdiction to determine the issues raised herein. This is so, since good order demands that once a court has fully pronounced itself https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5441/eng@2026-04-13 2

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on a matter and the litigant is not satisfied with the court’s determination, then the said litigant ought to appeal the determination rather than move the very court to declare its findings as unconstitutional. 16. The Petitioner is seeking a declaration of unconstitutionality where there is none. He is challenging the merits of the trial magistrate’s decision. He ought to have raised the same in the original appeal or the court of appeal. In other words, he has not with a reasonable degree of precision established the nature of the breach and the constitutional provision violated as was enunciated in the case of Anarita Karimi Njeru v Republic (1979) KLR. 17. A review of this suit in my view is a call for this court to sit on its appeal by declaring its very own orders as unconstitutional. Having noted that this court does not possess such powers, the only order that is commendable to me is that of dismissing the suit herein for want of merit which I hereby do. DATED, SIGNED AND DELIVERED THIS 13TH DAY OF APRIL 2026 ……………….. J. N. ONYIEGO JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5441/eng@2026-04-13 3

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