Dmm v Republic

3. The petition and the summons were both opposed by the Respondent ODPP through the Replying Affidavit dated 1st February 2026. 4. The matter was canvassed by way of written submissions. The Applicant filed the written submissions dated 27th October 2025 whilst the Respondents opted not to file any submissions. Background 5. The Applicant was initially charged in the lower court vide Karatina case No. 009 of 2013 with the charge of Incest Contrary to Section 8(3) of the Penal Code Cap 63, Laws of Kenya. 6. The Applicant entered a plea of Not Guilty to the charge. His trial was conducted in the Lower court and vide the judgement delivered on 16th May 2017 the trial Magistrate convicted the Appellant and sentenced him to life imprisonment. 7. Being aggrieved by his conviction and sentence the Applicant filed an appeal to the High Court being HCCR Appeal No. 42 of 2017. That appeal was duly heard and the same was dismissed vide the judgment delivered by Hon. Lady Justice Ong’udi (as he then was) on 22nd February 2019. 8. Undaunted the Applicant moved to the Court of Appeal in Appeal No. 103 of 2019 challenging the dismissal of his appeal in the High Court. The Court of Appeal delivered their judgment on 17th July 2024 dismissing his appeal. 9. The Applicant has now come back to the High Court and filed this petition seeking a declaration that the sentence of life imprisonment is unconstitutional and seeking a review of his sentence. 10. In their Replying Affidavit the ODPP stated that the sentence imposed upon the Applicant was lawful. 11. The Applicant has filed this Petition alleging a breach of his constitutional rights arising from the sentence of life imprisonment. He asserts that this sentence is inconsistent with Articles 25(a), 28, 29 (d) and 50 of the constitution. 12. The Applicant further avers that the mandatory nature of sentences provided for by Section 8(3) of the Sexual Offences Act deprives the trial court of discretion as provided for under Section 216 and 329 of the Criminal Procedure Code Cap 75, Laws of Kenya. 13. It is manifest from the above narration that the Applicant has exhausted all the channels of appeal provided for him by law. I have perused the judgments in the high Court and the Court of Appeal. Both courts considered the propriety of the sentence imposed upon the applicant and both courts dismissed his appeal against sentence. In other words both the High Court and the Court of Appeal upheld the sentence of life imprisonment which had been imposed by the trial court. In the circumstances having heard and determined his appeal the High Court is now ‘functus officio’ 14. The applicant is now trying to have another bite at the cherry through this application for review of sentence. Whilst the High Court does have supervisory jurisdiction over all subordinate Courts and tribunals, Article 165 (6) of the Constitution of Kenya provides that:“ (6) 15. 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.” [Own emphasis] Therefore once the Court of Appeal (which is a court superior to the High Court) has pronounced itself on a matter the constitution forbids the High Court from exercising its supervisory power of review https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7311/eng@2026-05-29 2

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over said decision. The Applicant cannot having obtained judgment in his appeal before the court of Appeal return a second time to the High Court seeking review of the same sentence which the Court of Appeal upheld. Accordingly I find no merit in the application for review of sentence. The same is dismissed. 16. Having exhausted all legal avenues of appeal the Applicant is at liberty to petition the Power of Mercy Committee. The applicant claimed that the imposition of the sentence of life imprisonment violated his rights under Articles 25(c), 28, 29(d) and 50 of the Constitution. 17. Article 25 (c) of the constitution guarantees the right to a fair trial. I have carefully perused the proceedings in the Lower Court, High Court and the Court of Appeal. In all three courts the Applicant was accorded right of audience. In the trial court the appellant was represented by counsel a Mr Baaru and was accorded the opportunity and was to cross-examine all the prosecution witnesses and was allowed to present his defence. In the premises the claim that the applicant was denied his right to a fair trial cannot stand. 18. The Applicant claims that his rights to human dignity as guaranteed by Article 28 of the Constitution were violated. The Applicant has not elaborated on how that right was violated and by whom. 19. The Applicant further alleges that his right not to be subjected to torture under Article 29(d) was violated. Once again it is not explained how this right has been violated or by whom. Where and when was the Applicant subjected to torture! No instances are given. 20. It is not enough to merely allege violations of one’s constitutional rights. The Applicant must give tangible evidence of how, when and by whom those rights were violated. As it is the petition consists of bare allegations with no evidence to back said allegations. 21. It is quite evidence that this Petition is nothing but a desperate attempt to appeal the decision of the court of Appeal and to rehash his previous appeals. It is an application for review of sentence couched as a petition. As I have stated earlier the Applicant herein has exhausted all avenues of appeal. His remedy now lies in petitioning the Power of Mercy Committee. 22. In conclusion no merit in the undated chamber summons or in the Amended Petition dated 8th July 2025. Both are hereby dismissed in their entirety. No orders on costs. DATED IN NYERI THIS 29TH DAY OF MAY 2026. ……………………………. MAUREEN A. ODERO JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7311/eng@2026-05-29 3

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