6.Upon perusing the Court File, I noted that the Applicant has made several applications to Court touching on the same matter.
7.There was Kisumu High Court Petition No. 25 of 2018 that was transferred to this Court vide a Court Order issued on 23.5.2018. In that Petition filed on 25.4.2018, the Applicant sought for a declaration that the Court find that his Constitutional rights had been breached for being sentenced to death in violation of the Supreme Court’s decision in the Muruatetu Case.
8.There was also Migori High Court Criminal Constitutional Petition No. 2 of 2018. This was transferred to this Court by the Court’s Orders issued on 8.6.2018.
9.The Applicant also filed Kisii High Court Petition No. 74 of 2019 and filed on 17.6.2019. In that Petition, he sought to have the Court review its sentence as the sentence imposed was unconstitutional.
10.The Applicant again filed Kisii High Court Constitutional Petition No. 91 of 2019. A Ruling was delivered by this Court, differently constituted, on 18.2.2020 where the Petition was dismissed.
11.The Applicant also filed Kisii High Court Constitutional Petition No 3 of 2020. By an order issued on 20.5.2020, this Court, differently constituted, held that the matter had been dealt with in Kisii Constitutional Petition No. 91 of 2020 and the file was marked as closed. Looking at this file, I note that indeed the Applicant’s sentence was commuted to life sentence with effect from 20.10.2016.
12.Not content with the foregoing, the Applicant filed the present Application, though he initially filed it in the High Court in Kisumu.
13.The present Application is ideally an application for revision.
14.Section 362 of the Criminal Procedure Code provides as follows: -
15.Section 364 of the Criminal Procedure Code provides thus: -364.Powers of High Court on revision(1)In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may-(a)in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358, and may enhance the sentence;(b)in the case of any other order other than an order of acquittal, alter or reverse the order.(c)in proceedings under section 203 or 296 of the Penal Code, the Prevention of Terrorism Act, the Narcotic Drugs and Psychotropic Substances [Control] Act, the Prevention of Organized Crimes Act, the Proceeds of Crime and Anti-Money Laundering Act, the Sexual Offences Act and the Counter-Trafficking in Persons Act, where the subordinate court has granted bail to an accused person, and the Director of Public Prosecutions has indicated his intention to apply for review of the order of the court, the order of the subordinate court may be stayed for a period not exceeding fourteen days pending the filing of the application for review.(2)No order under this section shall be made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by an advocate – in his own defence’.Provided that this subsection shall not apply to an order made where a subordinate court has failed to pass a sentence which it was required to pass under the written law creating the offence concerned. Emphasis mine
16.In the case of Reuben Mwangi Nguri v Republic  eKLR, the Court went into great detail in defining and delineating the constructs of revision. The Court held thus:
17.The Court also cited the case of Kiwala v Uganda 1967 EA 758 where the Court held “Once a case has been revised by the High Court becomes functus officio and that the revision is final unless there is an appeal to the court of appeal.”
18.In the case of Uganda v Polasi as cited in the case of Reuben Mwangi Nguri v Republic (Supra) held:
19.The Court further cited the case of REX v Compensation Appeal Tribunal 1952 1KB 338-347 where the English Court of Appeal held as follows: -
20.I believe I have said enough to conclusively show that I have no jurisdiction whatsoever to revise the orders of a Superior Court or a Court with concurrent jurisdiction.
21.In any event, the Sentencing Guidelines (2023) provides for who can apply for resentencing hearing. They provide as follows: -
22.According to the foregoing, is the resentencing application tenable? The answer is in the negative. The Court of Appeal in Joseph Lesire Chekem v Republic  eKLR, held:(28)As regards the sentence, the learned judge took into account the mitigating circumstances put forward by the appellant’s advocate but nonetheless found that the circumstances were such that the accused was not deserving of leniency, and accordingly sentenced the accused to death as lawfully provided. We are aware of the Supreme Court’s decision in Francis Karioko Muruatetu & Another vs Republic  eKLR in which the Supreme Court were in agreement with this Court’s decision in Godfrey Ngotho Mutiso v Republic, Criminal Appeal No. 17 of 2008 that, although the Constitution recognizes the death penalty as being lawful it does not provide that when a conviction for murder is recorded only the death sentence shall be imposed. However, we appreciate as the Supreme Court did in the Muruatetu decision that sentencing is the exercise of judicial discretion. In this case, the trial judge having exercised her discretion, we find no reason to interfere.
23.That said, it follows that the Applicant herein was not subjected to the mandatory death sentence but that the Trial Court heard him on mitigation and found that he was not deserving of leniency hence sentenced him to death.
24.To further buttress this, the Supreme Court in Muruatetu & another v Republic (Directions) (Supra), the Court held:18.Having considered all the foregoing, to obviate further delay and avoid confusion, we now issue these guidelines to assist the Courts below us as follows: -i……….ii.……..iii.All offenders who have been subject to the mandatory death penalty and desire to be heard on sentence will be entitled to re-sentencing hearing.
25.The Applicant was required to first establish that he was a victim of the mandatory death sentence as the punishment for murder under Section 203 as read together with Section 204 of the Penal Code. It is clear that he was not.
26.It is, therefore, plain to this Court that the Applicant is not among the group of persons entitled to benefit under a resentencing hearing.
27.And where the death sentence has been commuted to life imprisonment, as is the case herein, the directions provide thus:
28.In the circumstances, I find that the Application herein is then without merit.
29.The Application is dismissed for lack of merit.
30.It is so ordered.