Mwayele v Republic (Petition E013 of 2023) [2024] KEHC 12284 (KLR) (11 October 2024) (Judgment)
Neutral citation:
[2024] KEHC 12284 (KLR)
Republic of Kenya
Petition E013 of 2023
M Thande, J
October 11, 2024
Between
Kesi Koi Mwayele
Petitioner
and
Republic
Respondent
Judgment
1.By a Petition filed on 28.7.23, the Petitioner seeks review of the sentence imposed upon him by the trial court.
2.The Petitioner stated that he was convicted of the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act and sentenced to life imprisonment. He appealed both the conviction and sentence in Malindi HCCRA No. 19 of 2015, which appeal was dismissed. Not being satisfied, he filed Criminal Appeal No. 8 of 20019 in the Court of Appeal which was also dismissed vide a judgment dated 20.1.23.
3.Citing Baraka Safari v Republic and Articles 25, 27, 28 and 48 of the Constitution, the provisions of the Criminal Code as well as the Sentencing Policy Guidelines, the Petitioner challenged the mandatory life sentence imposed by the Sexual Offences Act. He pleaded that he has already spent 11 years in incarceration is enough and was that he eligible for parole. Further that he was a peaceful and law-abiding citizen. He urged the Court to review his sentence.
4.The Petition is opposed by the Respondent vide a replying affidavit sworn on 12.1.24 by Joseph Mwangi, prosecution counsel. The Respondent averred that the Petitioner has readily admitted that he appealed to this Court and the Court of Appeal without success. Further that there is no law supporting the prayers sought in the Petition. He added that litigation must come to an end and that allowing the Petition would open the flood gates as every imprisoned convict shall approach the Court with similar applications leading to endless litigation.
5.The first issue that this Court must determine is whether it has the jurisdiction to entertain the Petition. The law, is that this Court may only exercise that jurisdiction which has been conferred upon it by the Constitution, statute or both. In the case of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR the Supreme Court succinctly stated:
6.This Court derives its jurisdiction principally form Article 165(3) of the Constitution which confers upon this Court unlimited original jurisdiction in criminal and civil matters, the provision clearly delineates and demarcates what the Court can and cannot do. The jurisdiction of this Court includes supervisory powers. By dint of Article 165(6) however, this Court cannot supervise superior courts. It provides:
7.The superior courts in the court system in Kenya are listed in Article 162 (1) of the Constitution, which provides:
8.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 Petitioner’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:
9.This finding of the Court of Appeal was affirmed by the Supreme Court in Kenya Hotel Properties Limited v Attorney General & 5 others (Petition 16 of 2020) [2022] KESC 62 (KLR) (Civ) (7 October 2022) (Judgment), which stated:
55.We need to emphasize and reiterate that Mutunga CJ did not in any way state that the High Court may in any way, purport to overturn or order final decisions issued by higher courts than itself to start de novo, especially on appeals that have been finally concluded by the highest court at the time. Furthermore, the concurrence by Mutunga SCJ cannot override the judgment by the majority, despite what the appellant chooses to submit. As was thus rightly noted by the High Court and the Court of Appeal, the rule of thumb is that superior courts cannot grant orders to reopen or review decisions of their peers of equal and competent jurisdiction much less those court higher than themselves.
10.The Petitioner’s appeals were heard and dismissed by this Court and the Court of Appeal, a fact that he admits. What he now seeks is that this Court reviews its own decision and that of the Court of Appeal, a jurisdiction it does not have. As the Supreme Court stated in the cited case, a superior court cannot reopen or review decisions of its peers of equal and competent jurisdiction much less those of a court higher than itself.
11.Duly guided by Article 165(6) of the Constitution and the authorities cited, this Court lacks the jurisdiction to reopen the matter to relook at the Petitioner’s sentence that was upheld by the 2 superior courts. This would defy the constitutional hierarchical system of the courts.
12.In light of the foregoing, I find that the Petition filed on 28.7.23 is incompetent for want of jurisdiction, and the same is hereby struck out.
DATED, SIGNED AND DELIVERED IN MALINDI THIS 11TH DAY OF OCTOBER 2024.......................M. THANDEJUDGE