Edward Muriuki Kamau v Republic

a) THAT, may this honorable court be pleased to review imposed sentence further down ward as per above referred provisions of the law and allow me to bring further mitigation in support of my application in the interest of justice. b) THAT, I was charged with the offence of defilement c/sec.8 (1) as read with section 8(4) of the SOA. Convicted and sentenced to 15 years imprisonment By HON. L.MUTAI (CM) at Nanyuki on 22/2/2018. c) THAT, after my conviction I appealed to high court vide HC.CR APPEAL NO 16 OF 2018 at Nanyuki, but my appeal was later dismissed. By Hon.H. WAWERU (J) on 22.2.2022. I find no reason to appeal against that decision of the court, instead I wish to file this application for sentence review as per above provision of the law. d) THAT, may this honorable court be pleased to hear my prayers since it is within the rule of law under articles 50(2) (q) And 165 (3) (6) of the constitution, section 362 and 364 of the CPC. Whereby this court has unlimited jurisdiction in both civil and criminal matters. 2

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e) THAT, this application is grounded upon annexed affidavit of I. EDWARD MURIUKI KAMAU. And others grounds to be added at hearing of this application. 2. The same is supported by Supporting Affidavit sworn by Edward Muriuki Kamui in which he depones as follows. a) THAT, I am a Kenyan male adult of sound mind hence competent to swear this affidavit. b) THAT, I was charged with the offence of Defilement C/SEC. 8(1) as read with section 8(4) of the S.O.A. and Sentenced to 15 years imprisonment. By HON. L. MUTAI (C.M) on 22/2/2018 At Nanyuki law court. c) THAT, I did appeal against the court decision in Nyeri high court, whereby the appeal was dismissed by hon: H. WAWERU (J). After I received my court record, I decided not to appeal. Instead wished to file an application for sentence review before this court. I Therefore I do not have a pending appeal within republic of Kenya. d) THAT, I kindly beg this court to allow me to bring further mitigation and review my sentence further downward as 3

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the above cited provision of the law. And I am not challenging my conviction or the evidence on record. e) THAT, I was arrested on 20.3.2016 and bonded on 10.11.2016. And my bond was later extended on 11.8.2017. I then convicted on 22.2.2018. I beg the court to deduct the period I have served in remand custody c/section 333(2) of the CPC f) THAT, I am 35 years old and I do not have a previous record, and I am very remorseful to the incident and I am only a bread winner in our family, my child needs my effort to bring her up in her life. g) THAT, I have been in custody for the last 9 years since the date of my arrest. h) THAT, I am fully rehabilitated and reformed my character and record are good and recommendable. i) THAT, it is only fair, just and appropriate in the interest of justice that this court grants the prayer sought. 3. In opposing the application, the DPP raised a preliminary objection citing this court’s lack of jurisdiction to entertain the matter. The preliminary objection was canvassed by way 4

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of written submissions which I have had the opportunity to read and consider. 4. The jurisdiction of the High court is provided for under Article 165(3) of the Constitution and includes unlimited original jurisdiction in criminal and civil matters; jurisdiction to enforce bill of rights; appellate jurisdiction; interpretative jurisdiction; and any other jurisdiction, original or appellate, conferred on it by legislation. The High court further has supervisory jurisdiction over subordinate courts donated by Article 165(6) of the Constitution which states that; (6) 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. 5. This jurisdiction is expounded under sections 362 and 364 of the Criminal Procedure Code. 5

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6. The power of criminal review (called revision) of this court is provided for in sections 362 and 364 of the Criminal Procedure Code and extends only to – “…the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.” 7. The details of those powers of the High Court in revision are set out in section 364. 8. As per Article 165(6) and the above section, the High Court can only review or exercise revisionary powers over a subordinate court. 9. There is no law which bestows this court with jurisdiction to review a decision by a court of concurrent jurisdiction and/or its own decision. No judge of the High Court can superintend over fellow judges of that court or of the superior courts. The Court of Appeal in Peter Ng’ang’a Muiruri Vs. Credit Bank Ltd & 2 Others Civil Appeal No. 203 of 2006 held that; 6

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“It would be a usurpation of power to push forward such an approach, and whatever decision emanates from a court regarding itself as a constitutional court, with powers of review over decisions of concurrent or superior jurisdiction, such decision is at best a nullity.” 10 This court having dealt with the Applicant’s appeal on the sentence cannot again review its decision though passed by a different Judge. The issue of the application of Section 333(2) of the Criminal Procedure Code was a live issue in the appeal before Hon Justice Waweru and ought to have been dealt therein and to the extent that the court affirmed the sentence, I have no jurisdiction to revisit the matter. I have not come across any statutory provision that gives this court any criminal revisionary jurisdiction over its own findings, sentences or orders made or passed in exercise of its original or appellate criminal jurisdiction or jurisdiction over the findings of a superior court. 11 The court in David Mutai v Republic [2021] eKLR held that; 7

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“Though the High Court has unlimited original jurisdiction in Criminal and Civil matters under Article 165(3)(a) of the Constitution, holding it that it encompasses revisiting issues dealt with by the same Court and a step higher by the Court of Appeal, is equivalent to according the High Court cosmic jurisdiction of which it doesn’t have. Litigation just like everything else bad or good, has an end. The end point in this one was at the Court of Appeal, but probably there’s a slight vent to the supreme Court. Having observed the foregoing, I do find that this Court lacks jurisdiction to re-sentence the petitioner as urged. The petition therefore lacks merit and is hereby dismissed.” 12 The court in Stephen Mugendi Ndwiga v Republic [2021] eKLR observed that: “ It is my considered view that this court cannot review a judgment of Hon. S. Chitembwe J and in doing so 8

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resentence the petitioner herein…Further this court is bereft of jurisdiction to review the said judgment as doing so would be tantamount to sitting as an Appellate court on the judgment of the Learned Judge and which act the law abhors. In the same breath, this court cannot review the said judgment and in doing so take into account the time the petitioner had spent in custody. The same ought to have been dealt by Hon. Chitembwe J as the first appellate court. Failure by the said first appellate court to consider the said period cannot be rectified by this court as the same shall be akin to reviewing the decision of a court of concurrent jurisdiction.” 13 Further illumination on the issue is found in the decision in John Kagunda Kariuki v Republic [2019] eKLR, where Ngugi J (as he then was) expressed himself as follows; “In the present case, the Applicant’s appeal has already been heard by the High Court. He cannot 9

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return to the High Court for a review of the sentence imposed. He is at liberty to make an argument for reduced sentence at the Court of Appeal. At the helm of the Court system in Kenya is the Supreme Court followed by the Court of Appeal. This Court falls below the Court of Appeal. After the Applicant’s appeal in this Court was dismissed, he appealed to the Court of Appeal and the same was dismissed. That decision of the Court of Appeal is binding on this Court. In light of this, to entertain this matter in respect of which the Court of Appeal has pronounced itself, no matter how compelling the arguments placed before it, would be to violate the constitutional judicial hierarchical norm. In this regard, I am guided by the holding in the case of Kenya Hotel Properties Limited v Attorney General & 5 others [2020] eKLR, where the Court of Appeal stated: As we stated at the beginning of this judgment this 10

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appeal is disturbing. The multiplicity of endless proceedings around the same dispute does not bode well for the administration of justice…Its latest rising is the most baffling of all because the petition filed before the High Court sought strange prayers in that the Court there was being asked to annul, strike out, reverse or rescind a judgment of this Court, its elder sibling. In a system of law that is hierarchical in order, such as ours is, it seems to us that such a thing is quite plainly unheard of and for reasons far greater than sibling rivalry. The Constitution itself clearly delineates and demarcates what the High Court can and cannot do. One of things it cannot do by virtue of Article 165(6) is supervise superior courts. Moreover, under Article 164(3) of the Constitution, this Court has jurisdiction to hear and determine appeals from the High Court. Its decisions are binding on the High Court and all courts equal and inferior to it. It is therefore quite 11

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unthinkable that the High Court could make the orders the appellant sought as against a decision of this Court to quash or annul them, or that it could purport to direct this Court to re-open and re-hear a concluded appeal. We consider this to be a matter of first principles appellant’s submission supremacy of the enjoyment of fundamental misconceived that courts because so the that the issue pits against rights rights can citizens’ is really only be adjudicated upon by properly authorized courts. Any declaration by a court that has no jurisdiction is itself a nullity and amounts to nothing. It matters not how strongly a court feels about a matter, or how impassioned it may feel or how motivated it may be to correct a perceived wrong; without jurisdiction it would be embarking on a hopeless adventure to nowhere”. 14 From the foregoing, this court can only review the judgment of a subordinate court under the jurisdiction 12

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provided by sections 362 and 364 of the Criminal Procedure Code and the supervisory powers over subordinate court’s donated by Article 165(6) of the constitution. I must add for good measure that such review would not extend to review of legal sentences arrived at through proper application of existing law and procedure. 15 With the result that the preliminary objection herein has merit. The same is allowed and the application herein thus fails for want of jurisdiction and is dismissed. Dated signed and delivered virtually this 7th day of July 2026 A.K. NDUNG’U JUDGE 13

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