Ngowa v Republic (Petition E001 of 2024) [2025] KEHC 728 (KLR) (31 January 2025) (Judgment)
Neutral citation:
[2025] KEHC 728 (KLR)
Republic of Kenya
Petition E001 of 2024
M Thande, J
January 31, 2025
Between
Tyson George Ngowa
Petitioner
and
Republic
Respondent
Judgment
1.The Petitioner was convicted of the offence of attempted defilement contrary to Section 9(1) as read with subsection (2) of the Sexual Offences Act in Malindi Sexual Offences Case No. 19 of 2014 and sentenced to 20 years imprisonment. Aggrieved by the decision, he appealed against both the conviction and sentence in Malindi High Court Criminal Appeal No. 40 of 2015, which appeal was dismissed on 29.8.16. Unrelenting, the Petitioner filed Criminal Appeal No. 16 of 2017 in the Court of Appeal at Malindi which was dismissed by a judgment dated 7.12.17.
2.The Petitioner has now come back to this Court vide his Petition filed on 23.1.24 which he says he has brought under Article 50(2)(q) of the Constitution. He further states that he is not challenging his “innocence or guilt” as he has exhausted all avenues of appeal. He has served 10 years of his sentence and seeks that the period of 8 months he spent in custody be taken into account pending trial pursuant to Sentence 333(20 of the criminal procedure Code. He further asserts that he has reformed and requests to be reintegrated to society. He is the sole breadwinner and his family has suffered due to his incarceration. He added that the sentence of 20 years imposed upon him does not conform to international standards as required under Article 2(5) and (6) of the Constitution and the objectives of sentencing in the Sentencing Guidelines, 2016.1.The Petition is opposed by the vide grounds of opposition dated 24.4.24. The grounds are that the Petitioner admits that he has exhausted all avenues of appeal; that the sentence imposed was determined by the trial court as a matter of fact which took into account the Petitioner’s mitigation and the fact that he was a first offender; that Kenyan law does not provide for parole and it matters not that the Petitioner is now of good behaviour; that this Court lacks jurisdiction to review the sentence through the present Petition; that the Petition ought to be dismissed as it is bad in law, an abuse of the court process and devoid of merit.
4.At the very outset, this Court must determine whether it has jurisdiction to entertain the Petition before it. The law, is that a court may only exercise that jurisdiction which has been conferred upon it by the Constitution, statute or both. This was succinctly stated by the Supreme Court in the case of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR, as follows:
5.This Court derives its jurisdiction principally from Article 165(3) of the Constitution which confers upon it, 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:
6.The superior courts in the court system in Kenya are listed in Article 162 (1) of the Constitution as follows:
7.It is common ground that upon conviction by the trial court, the Petitioner unsuccessfully appealed to this Court and the Court of Appeal which upheld both the conviction and sentence. 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. In this regard, I associate with the holding in John Kagunda Kariuki v Republic [2019] eKLR, where Ngugi, J, (as he then was) stated:10.In the present case, the Applicant’s appeal has already been heard by the High Court. He cannot 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.
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. The decision of the Court of Appeal dismissing the Petitioner’s appeal is binding on this Court. By his Petition, the Petitioner seeks that this Court re-opens and re-hears a concluded appeal and reviews the judgment of the Court of Appeal, a court superior to it. To entertain this matter in respect of which the Court of Appeal has pronounced itself therefore, no matter how compelling the arguments placed before it, would be to violate the constitutional judicial hierarchical norm.
9.In the case of Kenya Hotel Properties Limited v Attorney General & 5 others [2020] eKLR, the Court of Appeal addressed the judicial hierarchical orders and stated:
10.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.
11.I am duly guided by the cited decisions. The Petitioner’s appeal was heard and determined by this Court and the Court of Appeal, a fact that he admits. Without jurisdiction to supervise a superior court, this Court cannot reopen or review the decisions of its peers of equal and competent jurisdiction, much less those of a court higher than itself. The Appellant cannot therefore invite this Court to tread on forbidden ground by reopening the matter to rehear the same. This would defy the constitutional hierarchy of the courts.
12.In light of the foregoing, the Court finds that the Petition herein is incompetent for want of jurisdiction and the same is hereby struck out.
DATED, SIGNED AND DELIVERED IN MALINDI THIS 31ST DAY OF JANUARY 2025M. THANDEJUDGE