1.The applicant was before Mwingi Law Courts charged with the offence of defilement contrary to section 8 (1) as read with sub-section (2) of the Sexual Offences Act Upon close of the trial he was convicted and sentenced to life imprisonment on June 26, 2013.
2.His appeal to Garissa High Court vide Cr Appeal No 16 of 2015 was dismissed undeterred, he moved to the Court of Appeal vide Appeal No 60 of 2018 Nairobi. The appeal was equally dismissed on October 23, 2020.
4.The application was opposed by the state on grounds that the court is functus officio.
5.I have considered the application herein and the response thereto. There is no dispute that the applicant was sentenced to serve life imprisonment which sentence was upheld by the High court and lower court.
6.The applicant is now inviting the court to review the sentence pursuant to Muruatetu one case which was also applied in the Phillip Mueke case where Judge Odunga expressed himself that the mandatory sentences are unconstitutional in line with Muruatetu 1 case. Learned Judge said mandatory sentences are not mandatory.
7.However Muruatetu 2 directions did not clarify that mandatory death penalty was duly unconstitutional in respect to murder cases. Although Odunga Judge as he then was said that mandatory sentences in sexual offences were not binding on the trial court, he did not find the same unlawful circumstances require that it be meted out.
8.It is trite that supervisory jurisdiction conferred upon the High Court under Article 165 (6) & (3) is duly applicable against decisions made by Sub-ordinate courts and not superior courts. In this case I am being asked to review a decision of a superior court fully complied by the Court of Appeal. This court is functus officio hence has no power to review the sentence.