Mary Mukami Mwangi v The Republic

A. The Court lacks jurisdiction to deal with the matter pending before the Court of Appeal. B. Leave is granted to the applicant to file further affidavit confirming withdrawal of the matter pending before the Court of Appeal. C. Should the said appeal be withdrawn, the Dr of this Court shall call for Criminal Case no 59 of 2026, and Milimani Criminal Appeal No 192 of 2019 for Courts perusal . 7. When the application came up before the court for hearing, the applicant did not confirm having withdrawn the matter pending before the Court of Appeal. She submitted that she had served nine years and was now seeking to be placed on Community service order so as to go back to the society and take care of her children and aged mother , having been rehabilitated while in prison. 8. Ms Kariuki for the state submitted that the court lacks jurisdiction to review the sentence and that the issues raised by the applicant were raised in mitigation and that the applicant had not even served a half of her sentence. Determination 9. In this matter the first issue for determination is whether the court has jurisdiction on the application herein and secondly whether the same has made up a case for grant of the orders sought . 10. It is not disputed that the applicant approached this court by way of appeal and this court ( Githua J) had this to say on the applicant’s sentence : 11. “ 38. 38. Considering that the maximum default sentence that can lawfully be imposed on a convict in lieu of payment of fine exceeding kshs 50,000 is twelve months imprisonment (see section 28 of the penal code ) I find that even if the trial court had imposed the correct fine of kshs 22,296,000 it would have imposed the same default sentence as it did with the fine of kshs 20,000,0000. Bearing in mind that the appellant has already served over three years in prison which is excess of the period she would have served in default of payment of the aforesaid fine, I do not find it necessary to disturb the trial courts sentence regarding the amount ordered as fine. In any case the state did not file cross appeal challenging the amount ordered as fine by the trial court 39. In respect of the term of imprisonment, the learned trial magistrate in exercise of his discretion sentenced the appellant to 20 years imprisonment. After looking at the trial courts presentence notes and the circumstances under which the ofience was committed as well as the nature and the seriousness of the ofience , I am unable to find any legal basis upon which to interfere with the sentence passed by the trial court. I am not persuaded to find that the sentence was harsh and manifestly excessive. It is my finding that the sentence was lawful and deserved “ This court on the 24th February 2022 found the sentence mated against the applicant lawful and therefore cannot now in 2026 say that its decision thereon was wrong to be substituted with Community service order and or probation. The court will have sat on appeal on its own decision a kin to judicial incest. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9985/eng@2026-06-30 2

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12. The other jurisdictional challenge is the fact that as at the time of this ruling, the applicant has a matter pending before the Court of Appeal and therefore this court has no jurisdiction to sit on a matter which is the subject of litigation before a court higher than itself. 13. On the issues of section 333(2) of the CPC the trial court in sentencing the applicant had this to say “ I have taken note of the fact that the convict did not delay the matter as such and the fact that the convict was in remand custody for a period of about two months before she was released on bond …… taking into account the decision by the Court of Appeal in Caroline Auma Majabu case (supra ) the prescribed maximum sentence is affine of three times the value of the methamphetamine and in addition of a maximum of life imprisonment “ 14. It is clear that the period under section 333(2) was taken into account and the applicant benefited for a lesser sentence rather that the one provided for in law and therefore the application herein has no merit and is dismissed. 15. The applicant is best advised to pursue his appeal pending before the court of appeal as I take the view that litigation must come to an end at every stage of the court hierarchy and this unbecome habit of litigants re-inventing the wheel to have a second bite sat the cherry must be stopped once and for all so as to avoid judicial confusion. 16. And it is ordered . DATED SIGNED AND DELIVERED THIS 30th DAY OF JUNE 2026 J.WAKIAGA JUDGE In the presence of The applicant in person from prison via teams Ms Kariuki for the State Irene - Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9985/eng@2026-06-30 3

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