Kilonzo v Makueni & another [2023] KEHC 25434 (KLR)

Kilonzo v Makueni & another (Petition E006 of 2023) [2023] KEHC 25434 (KLR) (15 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25434 (KLR)

Republic of Kenya

In the High Court at Makueni

Petition E006 of 2023

TM Matheka, J

November 15, 2023

IN THE MATTER OF: ARTICLE 22 (1), 23(1) (3) (d), 24(10) (d), 2 (a) (b) (c), 25(a) 20(1) (2) (3) (a), 47, 48, 51(1) 52, 165(3) (d) , 258(1), 259(1) of the CoK 2010 AND IN THE MATTER OF : SECTION 3 & 4(b) OF PROBATION OFFENDERS ACT CAP 64 LAWS OF KENYA AND IN THE MATTER OF: CASE NO 939 /2011 AT MAKINDU LAW COURTS AND H.C.CR.A NO 183 OF 2012 AT MACHAKOS HIGH COURT

Between

Nichodemus Musyoki Kilonzo

Petitioner

and

ODPP Makueni

1st Respondent

PACS

2nd Respondent

Judgment

1. The Petitioner filed this Petition pursuant to Article 22(1) of the COK and the Mutunga Rules 2013. He seeks that this court grants him an order so that he can serve the remainder of his custodial sentence on Probation Supervision under the Probation of Offenders Act s. 3. The grounds are that the Petitioner was arrested at the tender age of 18 years and has served the substantial part of his sentence in custody; that his youthful and creative time have been a waste and would like this court to grant him new leaf to reconstruct his life.

2. From the record the Petitioner was charged with defilement in Makindu PMCRC no 939 of 2011 and sentenced to 20 years imprisonment on the 6th May 2013 for the offence of defilement c/s 8(1) s read with 8(3) of the Sexual Offences Act.

3. He filed an appeal in the High Court at Machakos reported as NMK v R [2015] eKLR. The learned Judge in a judgment dated 18th march 2015 dismissed the appeal and confirmed the sentence. Before I received the Judgment in the appeal I sought a Social inquiry report on the Petitioner which was filed on the 20th September 2023.

4. It note that it is this sentence, that was confirmed by this court that the Petitioner wishes this court to look at and reduce to the period already served and declare that the rest be served as a non-custodial sentence.

5. Though he cites a raft of Constitutional Provisions, he relies on Article 22(1) of the Constitution which states :22. Enforcement of Bill of Rights(1)Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened

6. The Petitioner has not placed any evidence before this court to demonstrate that any of his rights or fundamental freedoms in the Bill of Rights has been denied, violated or infringed, or is threatened.

7. This court (High Court at Machakos) confirmed his sentence of 20 years’ imprisonment. If he considers that the period spent in custody so far to be a waste of time, then it cannot be true that he has reformed as alleged in his documents.It is evident that this is an application for review of sentence disguised as a Petition. This is the Right provided for under Article 50 (2) which provides that(2)Every accused person has the right to a fair trial, which includes the right—(q)if convicted, to appeal to, or apply for review by, a higher court as prescribed by law.

8. Article 165 of the constitution empowers the High Court over subordinate courts as follows;(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.(7)For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice

9. This court is not superior to the High Court at Machakos and cannot review its own orders.

10. Hence though the Petition is not opposed by the 1st Respondent I find the Petition to be without merit for want of jurisdiction and dismiss it accordingly.

DATED SIGNED AND DELIVERED THIS 15TH NOVEMBER 2023MUMBUA T MATHEKAJUDGE