[2020] KEHC 3442 (KLR)

REPUPLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

MISC. CRIMINAL APPLICATION NO. 370 OF 2019

LESIIT, J

ANTONY KARIUKI KAMAU..............................................................................APPLICANT

VERSUS

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

RULING

1. The Applicant has approached this court by way of a Chamber Summons. No law is cited on the face of the application. Thus the Applicant does not state the jurisdiction he has relied upon in making this application.

2. There are four orders sought as follows:

(1) That, may the honourable court be pleased to allow my application.

(2) That, may the honourable court be pleased to hear my review.

(3) That, may the honourable court be pleased to reduce my sentence.

(4) That, the honourable court be pleased to grant leave for amendment for this application.

3. The application is supported by an affidavit in which the Applicant sets out the background of his case. In brief he says: -

- He was arrested and charged in court on 22nd March, 2017.

- He was sentenced to serve 6 years imprisonment for the offence of manslaughter on 28th March, 2019.

- He has been in custody for 2 years which he wants court to consider alongside:

· The fact he is remorseful

· Is sole bread winner of his family,

· He was a first offender

4. The Applicant now seeks a non-custodial or suspended sentence.

5. When the matter came up for hearing today, Ms. Everlyn Onunga Learned Prosecution Counsel gave a brief summary of the Applicant’s case before the trial court. Counsel urged that the Applicant faced one count of murder contrary to section 203 of the Penal Code, but following successful Plea Agreement the offence was reduced to manslaughter contrary to section 202 of the Penal Code to which he pleaded guilty.

6. Ms. Onunga drew the court’s attention to the fact that the Applicant’s mitigation was considered, together with a Pre-Sentence Report from the Probation before sentence was meted out. She submitted that in the light of the reduction of the offence charged following Plea Agreement, the Applicant lost his right of appeal.

7. Learned Prosecution Counsel submitted that in the courts remarks in its ruling on sentence, the court had considered the circumstances of the case, the tender age of the deceased, the relationship between the deceased and the accused (step son – step dad) and the accused abuse of alcohol, and had concluded that a custodial sentence was inappropriate as it would not assist the Applicant to reform.

8. The court has considered the fact that the Applicant is asking for a non-custodial sentence on the basis of serving two out of six years imprisonment. The time he has spent serving sentence is only one year not two as he pleaded in his application. However, he has spent three years overall considering the period spent pending trial.

9. The brief summary of this case is that the Applicant was the accused before this court in HCCR. Case No. 14 of 2017. He was facing one count of murder contrary to section 203 of the Penal Code. He entered into a Plea Agreement with the State as a result of which the information was amended and his charge reduced to manslaughter contrary to section 202 of Penal Code.

10. The most important factor affecting this application is just one: that the Applicant pleaded guilty to a lesser charge of manslaughter contrary to section 202 of the Penal Code after a Plea Bargaining Agreement reduced his charge from the one he initially faced of murder contrary to section 203 of the Penal Code.

11. Section 137L of the Criminal Procedure Code provides:

137L. (1) Subject to subsection (2), the sentence passed by a court under this Part shall be final and no appeal shall lie therefrom except as to the extent or legality of the sentence imposed.

(2) Notwithstanding subsection (1), the Attorney-General, in the public interest and the orderly administration of justice, or the accused person, may apply to the court which passed the sentence to have the conviction and sentence procured pursuant to a plea agreement set aside on the grounds of fraud or misrepresentation.

(3) Where a conviction or sentence has been set aside, under sub section (2), the provisions of section 137J shall apply mutatis mutandis.

12. At the time of recording the Plea Taking for the reduced charge of manslaughtercontrary to section 202 of Penal Code, the record bears witness to the fact that the trial court explained afresh to the Applicant that pleading guilty under the Plea Agreement meant inter alia, that he was waiving his right to appeal in the case. To which the Applicant indicated that he had been warned and that notwithstanding, he was willing to proceed to plead to the charge.

13. Section 137L(1) of the Criminal Procedure Code gives an accused person a limited window of appeal against the sentenced imposed against him pursuant to a Plea Agreement. Such appeal would only lie if it is a challenge to the extent or legality of the sentence imposed. Being an appeal, it should be to the appellate court.

14. In this case, the Applicant has not filed an appeal. He filed an application for review of sentence, seeking to have his sentenced reduced. Section 137L (1) does not apply to his application.

15. Under section 137 (2) of Criminal Procedure Codeeither the DPP in the public interest or the accused can apply to the trial court for the setting aside of the conviction and sentence procured pursuant to a plea agreement. Such an application can only be made on grounds of fraud or misrepresentation.

16. This is not an application to set aside the conviction and sentence entered in the trial pursuant to the Plea Agreement. That provision therefore does not apply.

17. I find that the application before court is for review of sentence entered pursuant to a Plea Agreement. Such an application is not provided for in the law, and was not envisaged at all under the Criminal Procedure Code or in any written law. The application is incompetent and is accordingly struck out and dismissed.

DELIVERED AT NAIROBI THIS 11th DAY OF MARCH, 2020.

LESIIT, J

JUDGE