Wanga v Republic [2023] KEHC 25204 (KLR)

Wanga v Republic (Miscellaneous Criminal Application E032 of 2023) [2023] KEHC 25204 (KLR) (9 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25204 (KLR)

Republic of Kenya

In the High Court at Siaya

Miscellaneous Criminal Application E032 of 2023

DO Ogembo, J

November 9, 2023

Between

Alfred Waganda Wanga

Applicant

and

Republic

Respondent

Ruling

1. The applicant, Alfred Waganda Wanga has filed an Application before this court on 21/3/2023. The application is brought under various constitutional provisions. The same seeks that this court reviews the sentence of the applicant on the basis that mandatory minimum sentences are unconstitutional (Machakos Petition No. E017/2021).

2. In the Affidavit in support of this application, the applicant has deponed that he was sentenced to serve 20 years imprisonment in Bondo PM’S court on 17/2/2022. That his appeal to the High Court (HCCR. Appeal No. E007 of 2022, Siaya) was dismissed on 20-11-2022. In this application, the applicant has gone ahead to raise mitigating factors for consideration. The prosecution opposes this application on the basis of jurisdiction.

3. I have considered this application. I have also considered the submissions that the parties have made to the same. In my view, the sole and important issue that this application presents is whether this court is the right forum for the applicant to ventilate his case at this point in time. It is clear that the appeal of the applicant both on conviction and sentence was dismissed by the High Court (Aburil J) way back on 20/11/2022.

4. This was well after the Machakos Petition No. E017/2021 and Supreme Court decision in the Muruatetucase (Petitions No. 15 and 16 of 2017) had been passed. The Honourable Judge obviously considered these decisions in deciding on the applicant’s appeal.

5. So, does this court possess any jurisdiction or power to reconsider or revise any decision or order of a Judge of concurrent jurisdiction? I think not. Neither the Constitution nor any written law confers on this court any such jurisdiction. Same would be tantamount to this court sitting on its own appeal. This court repugnant and awkward just as much as it would be unconstitutional and illegal.

6. It is for this reason that this court declines the invitation made to it by the applicant by way of this application. I accordingly find this application lacking in any merit. I dismiss it wholly.

7. It is so ordered.

DATED, SIGNED AND DELIVERED AT SIAYA THIS 9TH DAY OF NOVEMBER, 2023. D.O. OGEMBOJUDGE9. 11. 2023Court:Ruling read out in Open court in the presence of the applicant (from Kisumu Maximum Prison) and Mr. Kubebea for State.D.O. OGEMBOJUDGE9. 11. 2023