Peter Kipkosgei alias Brown v Republic [2022] KEHC 2126 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISUMU

CRIMINAL PETITION NO. E033 OF 2021

PETER KIPKOSGEIAliasBROWN .... PETITIONER

-VERSUS-

REPUBLIC...............................................RESPONDENT

JUDGMENT

The Appellant, PETER KIPKOSGEIAliasBROWN has moved this Court by a Petition of Appeal.

1. He was convicted for the offence of Stealing Stock, contrary to Section 278of the Penal Code, and was then sentenced to 10 Years Imprisonment.  The said sentence was handed down by the trial court on 14th of March 2018.

2. By the Petition herein the Appellant invoked the provisions of Article 133 (1)of the Constitutionand Sections 19and 20of the Power of Mercy Act.

3. He has asked this Court to review his sentence to that of Probation.

4. He made that request because he is convinced that he was now a reformed person, and he said he would never commit a similar offence if he was granted his liberty.

5. In his sworn affidavit, the Appellant invoked the provisions of Article 50 (6) (b)of the Constitution.

6. When the matter first came up for hearing, the Court inquired from the Appellant if he was pursuing an appeal.  That question arose from the fact that the Applicant had, in this matter filed a Petition of Appeal.

7. In the circumstances, the Court informed the Appellant that if he was desirous of challenging the sentence, he ought to move the Court appropriately.

8. The Appellant’s answer was that he was simply seeking the assistance of this Court.

9. At that point, Ms Odumba, learned State Counsel drew the attention of the Court to the fact that the Appellant’s documents revealed that he had previously filed Petition No. 16 of 2020.

10. The Appellant confirmed that he had filed the said Petition.  But he also said that he had withdrawn it.

11. Ms Odumba then drew the attention of the Court to an Appeal No. 28 of 2019, which the Appellant had filed.

12. According to the Appellant, he had withdrawn the said appeal on 13th April 2021.

13. At that point, the Court directed the Appellant to file an affidavit in which he should provide details of all his appeals and petitions.  He was also required to specify the current status of each of the said appeals and petitions.

14. By an affidavit sworn on 21st October 2021, the Appellant indicated that he had filed the following appeals;

i. HC MISC. Appeal No. 60 of 2018;

ii. HCCRA NO. 33 of 2019;

iii. HCCRA NO. 16 of 2020.

15. He deponed that he was now praying to this Court that he be allowed to withdraw HCCRA NO. 16 OF 2020.

16. But in the same vein, he indicated that the said appeal had been withdrawn on 13th May 2021.

17. Assuming that HCCRA NO. 16 OF 2020had been withdrawn, that would still leave the other 2 appeals pending.

18. The actions of the Appellant, of filing a multiplicity of appeals or petitions or applications, whilst others were still pending, is nothing but an abuse of the process of the Court.

19. Even assuming that earlier applications had been withdrawn, it is important to emphasize that the filing of more than one application, seeking similar reliefs, against the same party causes strain in the Justice System, and also gives rise to the possibility of conflicting decisions.

20. Reverting to the facts of the case before me, I find that the Appellant failed to demonstrate that he had withdrawn the appeals he had filed earlier.  It is not acceptable for a party to file a petition seeking orders which he had also sought in an appeal which was either pending or which had been dismissed.

21. On that ground alone, the petition before me ought to be rejected.

22. Secondly, I find that although the Appellant had invoked the provisions of Article 50 (6) (b)of the Constitution, he failed to demonstrate that there was any new or compelling evidence which had become available, and which could have persuaded the Court to order for a new trial.

23. Thirdly, pursuant to Article 133of the Constitution, the person vested with authority to exercise the Power of Mercy is the President of the Republic.

24. As the jurisdiction in that regard vests in the President, this Court cannot usurp it.

25. In any event, it is noted that the Appellant was well versed with the relevant applicable law, which governs the exercise of the Power of Mercy.  I so find because the Appellant cited Sections 19and 20of the Power of Mercy Act.

26. Section 19 (1)stipulates thus;

“Any person may, subject to the Constitution and this Act, petition the President, through the Committee, to exercise the power of mercy and grant any relief specified in Article 133 (1) of the Constitution.”

27. Meanwhile, Section 20 (1)states that an application for the exercise of the Power of Mercy shall be by a petition in the prescribed form.  In effect, the task has been made easy for any person who may wish to seek the Power of Mercy, because he just needs to utilize the prescribed form when lodging his petition.

28. In conclusion, the Petition herein is before the wrong forum.  It cannot be granted.  Accordingly, the Petition is dismissed.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 15TH DAY OF FEBRUARY, 2022

FRED A. OCHIENG

JUDGE