Chiande v Republic [2022] KEHC 13852 (KLR)

Chiande v Republic (Miscellaneous Criminal Application E056 of 2021) [2022] KEHC 13852 (KLR) (11 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13852 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Miscellaneous Criminal Application E056 of 2021

DO Ogembo, J

October 11, 2022

Between

Nicholas Muturi Chiande

Applicant

and

Republic

Respondent

Ruling

1. Nicholas Muturi Chiande, the applicant, has applied to this court for sentence review following the decision of the Supreme Court, in petition No 15 of 2015, Francis Karioko Muruatetu and another v Republic. This application (undated), was filed herein on February 25, 2021 and is supported by the affidavit of the applicant.

2. In the affidavit in support of the application, the applicant has deponed that he was first tried and convicted of the offence of murder in High Court Criminal Case No. 44 of 2008. That he appealed to the Court of Appeal vide criminal appeal No. 109 of 2013 which appeal was dismissed.

3. He has also applied under section 333(2) of theCriminal Procedure Code, that the period he spent in custody awaiting determination of his case be accounted for in his sentence.

4. In his oral submissions in court, the applicant confirmed that his death sentence was committed to life sentence by the President in 2014.

5. The learned counsel for the state, Mr. Mutuma, opposed this application. First, that the finding in the Muruatetu case does not offer an automatic right to reduction of sentence and that in our case, the applicant has not offered any mitigation. Also that life sentence remains a legal sentence. Lastly, that the Court of Appeal already pronounced itself in this matter, and so this court lacks jurisdiction in this matter.

6. Foremost, it is noted that upon his conviction by the High Court, the applicant moved to the Court of Appeal on appeal. His appeal was dismissed in a Judgment delivered on November 28, 2014. I have perused and considered the Judgment of the 3 Judge Bench of the Court of Appeal. At the last paragraph of the same, the Honourable Judges of Appeal, in dismissing the appeal noted:“The upshot of the above is that we find no merit in this appeal. The sentence having been lawful, we have no alternative but to dismiss this appeal in its entirety.”

7. The Court of Appeal thus made a finding that the sentence of the applicant was lawful. The issue therefore, is whether this court can reconsider the same question. Does this court have jurisdiction to reconsider the same issue that a superior court has made a finding?

8. This court obtains its jurisdiction from article 165 of the constitution. Article 165 nor any other section of the constitution confers any jurisdiction on this court to reconsider any decision or finding of the Court of Appeal, a superior court. It is for this reason that I am not convinced by the submissions of the applicant, that this court can resentence the applicant in line with the ruling in theMuruatetu case. Doing so would in effect amount to a revision of the orders of a superior court.

9. Suffice it to say, that even if the Muruatetuwere to apply herein, it would still be incumbent on the applicant to raise his mitigating factors that would justify a resentencing. This, the applicant has failed to do. And further, it is conceded that the sentence of the applicant was commuted to life sentence by His Excellency the President in 2014, and so this is not a matter of death sentence as considered in theMuruatetu case.

10. The applicant herein moved this court by way of application for revision. As stated above, I do not find any merit in both the applications filed herein (headed application, and chamber summons) filed on February 25, 2021. Same are dismissed. Orders accordingly.D. O. OGEMBOJUDGE11TH OCTOBER, 2022Court:

11. Ruling read out in the presence of the applicant (Kamiti) and Ms. Oduor for the state

D. O. OGEMBOJUDGE11TH OCTOBER, 2022Applicant:I pray for the ruling.Court:Certified copy of the ruling to be prepared and supplied.D. O. OGEMBOJUDGE11TH OCTOBER, 2022