Nasoro v Republic (Petition E010 of 2023) [2025] KEHC 94 (KLR) (17 January 2025) (Judgment)
Neutral citation:
[2025] KEHC 94 (KLR)
Republic of Kenya
Petition E010 of 2023
M Thande, J
January 17, 2025
Between
Alfred Chiriba Nasoro
Applicant
and
Republic
Respondent
Judgment
1.The Applicant herein was charged and convicted of the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code in Malindi HCCR No. 36 of 2010 and sentenced to death. Aggrieved by the said conviction and sentence, the Applicant preferred an appeal in the Court of Appeal namely Civil Appeal No. 41 of 2016. The appeal was dismissed and both the conviction and sentence upheld.
2.The Applicant has come back to this Court vide a Petition, seeking review of his sentence. He contends that he was sentenced to the mandatory sentenced as prescribed under Section 204 of the Penal Code without consideration of his mitigation. Further that the Supreme Court in Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) (Petition 15 & 16 of 2015 (Consolidated)) [2017] KESC 2 (KLR) (14 December 2017) (Judgment) (Muruatetu case) declared the application of mandatory death sentence unconstitutional and allowed those aggrieved to lodge re-sentencing applications in the High Court. He further argued that mandatory sentences are discriminatory in nature contrary to Article 27 of the Constitution, because they give differential treatment to a convict under the impugned provisions distinct from those convicted of other offences which do not impose mandatory sentences.
3.The Applicant urged the Court to review his sentence and grant him a lenient sentence informed by his mitigation and the unique facts and circumstances of his case.
4.b ed that although the trial Judge did not impose the death sentence but the determinate sentence of 30 years, he failed to consider the report of the World Health Organisation on human life expectancy which currently stands at 64.4 years for male persons. He claimed that given his current age of 38 years, a sentence of 30 years is excessive as it would go beyond life expectancy. He relied on the case of Ali Abdalla Mwanza v Republic [2018] eKLR where the Court of Appeal reduced a sentence of 40 years to 20 years. He further stated that he has reformed urged the Court to give him another chance considering that he is a first offender. The Applicant further seeks that the period spent in custody pending trial be taken into account, pursuant to Section 333(2) of the Criminal Procedure Code.
6.The Respondent chose not to respond to the Application and left the matter to the Court.
7.At the very outset, this Court must determine is whether it has jurisdiction to entertain the Application before it. The law, is that this 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:
8.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:
9.The superior courts in the court system in Kenya are listed in Article 162 (1) of the Constitution, which provides:
10.It is common ground that it is this Court that both convicted and sentenced the Applicant. Additionally, the Applicant unsuccessfully appealed to 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.
11.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 was convicted by this Court, 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.
12.In the case of Kenya Hotel Properties Limited v Attorney General & 5 others [2020] eKLR, where the Court of Appeal stated:
13.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:
14.I am duly guided by the cited decisions. The Petitioner’s appeal was heard and determined by the Court of Appeal, a fact that the Applicant admits. He 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. This Court lacks jurisdiction to supervise a superior court. It cannot therefore entertain a matter, leave alone grant orders therein, to reopen or review the decisions of its peers of equal and competent jurisdiction, much less those of a court higher than itself.
15.In light of the foregoing, the Court finds that the Petition herein is incompetent and the same is hereby struck out.
DATED, SIGNED AND DELIVERED IN MALINDI THIS 17TH DAY OF JANUARY 2025..........................M. THANDEJUDGE