Maina v Republic [2023] KEHC 24871 (KLR)

Maina v Republic (Criminal Appeal E65 of 2023) [2023] KEHC 24871 (KLR) (7 November 2023) (Ruling)

Neutral citation: [2023] KEHC 24871 (KLR)

Republic of Kenya

In the High Court at Kibera

Criminal Appeal E65 of 2023

DR Kavedza, J

November 7, 2023

Between

Con Moses Mucheru Maina

Applicant

and

Republic

Respondent

(Criminal Appeal No. 68 of 2018 wherein the sentence was revised by Hon. D.O. Ogembo on 10th July 2020 Criminal Appeal 68 of 2018 )

Ruling

1. Before me is an application by the applicant, Con Moses Mucheru Maina, seeking revision of the sentence which he is currently serving.

2. The applicant was charged with two counts, to wit, robbery with violence contrary to section 295 as read with section 296 of the Penal Code, and causing actual bodily harm contrary to section 251 of the Penal Code. He was subsequently sentenced to serve 15 years imprisonment on count I and 1 year imprisonment for count II.

3. Aggrieved by the sentence, the applicant filed Criminal Appeal No. 68 of 2018 wherein the sentence was revised by Hon. D.O. Ogembo on 10th July 2020 to take into account the time he spent in custody.

4. What the applicant is seeking therefore, is for this court to review the decision of a court of concurrent jurisdiction. This court is bereft of any such jurisdiction to review the said decision, as doing so, would be tantamount to sitting as an appellate court on the decision of a court of concurrent jurisdiction (Ogembo J). As a general rule, superior courts cannot sit in review/appeal over decisions of their peers of equal and competent jurisdiction. The applicant’s remedy, if at all, lies elsewhere but certainly not in this court.

5. In view of the foregoing, this court does not have jurisdiction to entertain the instant application. See the Owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR, where it was held that jurisdiction is everything. Without it, a court has no power to make one more step, and must down its tools.

6. The application not only lacks merit, but it is an abuse of the court process. The Application is therefore dismissed with an order that the Applicant shall not file any similar application without leave of court.

RULING DATED AND DELIVERED VIRTUALLY THIS 7TH DAY OF NOVEMBER 2023. ............................................D. KAVEDZAJUDGEIn the presence of:Ms Akunja for the State.Applicant absent (VTC).Joy C/A.