[2023] KEHC 26929 (KLR)

Chepkwony v ODPP (Miscellaneous Application 72 of 2019) [2023] KEHC 26929 (KLR) (20 November 2023) (Ruling)

Neutral citation: [2023] KEHC 26929 (KLR)

Republic of Kenya

In the High Court at Nakuru

Miscellaneous Application 72 of 2019

SM Mohochi, J

November 20, 2023

Between

Phillip Kipkoech Chepkwony

Applicant

and

ODPP

Respondent

Ruling

1. This is an application by Notice of Motion dated 30th June 2019 that invites the court to rehear his sentence and is grounded on the Applicants undated and uncomissioned sworn affidavit filed on the same day.

2. That the Appellant was charged with the offence of Defilement of a child contrary to Section 8(1) as read with Section 8(2) of the Sexual Offence Act 3 of 2006 and sentenced to life.

3. he makes this application in regard to the above-mentioned articles in reliance of Article 165(3) (b) of the constitution which empowers this court to handle application of this nature.

4. That he has exhausted all appeals and was not accorded fair trial of sentencing from the trial court to the last court of appeal thus contravening Article 50(2) (q) of the constitution while relying on the case of Douglas Muthaura Ntoribi Misc.app. No.4 of 2015 at Meru High Court and in the case of murder of John Nganga Gacheru And Another In HCCR. Case No. 31/016 At Kiambu High Court And William Okungu Kittiny v Rep 2018 eKLR Criminal Appeal No.56/2013 Court of Appeal Kisumu.

5. The Applicant herein relies on the case of: - Francis Karioko Muruatetu And Another v Rep (supreme Court Petition N0. 15 OF 2015) that mandatory Life penalty is unconstitutional thus seeking for appropriate sentence.

6. The Power of High Court to call for records is provided for under Section 362 of the Criminal Procedure Code.“The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court”.

7. Section 364 of the Criminal Procedure Code provide for the Powers of High Court on revision as follows;(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(2) of the Panel 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 Prosecution 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.(3)Where the sentence dealt with under this section has been passed by a subordinate court, the High Court shall not inflict a greater punishment for the offence which in the opinion of the High Court the accused has committed than might have been inflicted by the court which imposed the sentence.(4)Nothing in this section shall be deemed to authorize the High Court to convert a finding of acquittal into one of conviction.(5)When an appeal lies from a finding, sentence or order, and no appeal is brought, no proceeding by way of revision shall be entertained at the insistence of the party who could have appealed.

8. In the case of Prosecutor v Stephen Lesinko [2018] eKLR Nyakundi J outlined the principles which will guide a court when examining the issues pertaining to Section 362 of the Criminal Procedure Code as follows: -a.Where the decision is grossly erroneous;b.Where there is no compliance with the provisions of the law;c.Where the finding of fact affecting the decision is not based on evidence or it is result of misreading or non-reading of evidence on record; andd.Where the material evidence on the parties is not considered;

9. The Supreme Court clarified that their decision in the Muruatetu case only related to the mandatory death sentence for murder cases under Section 203 and 204 of the Penal Code, and did not apply to any other statutory mandatory death sentences or minimum sentences.

10. Specifically, the Supreme Court issued the following guidelines.“18. Having considered all the foregoing, to obviate further delay and avoid confusion, we now issue these guidelines to assist the courts below as follows –a.The decision of Muruatetu and these guidelines apply only in respect to sentences of murder under section 203 and 204 of the Penal Code.b.The Judiciary Sentencing Policy Guidelines to be revised in tandem with the new jurisprudence enunciated in Muruatetu.c.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.d.Where an appeal is pending before the court of Appeal, the High Court will entertain an application for re-sentencing upon being satisfied that the appeal has been withdrawn.e.In re-sentencing hearing, the court must record the prosecution’s and the appellant’s submissions under section 329 of the Criminal Procedure Code as well as those of the victim before deciding on the suitable sentence.f.An application for re-sentencing arising from a trial before the High Court can only be entertained by the High Court, which has jurisdiction to do so and not the subordinate court.g.In re-hearing sentence for the charge of murder, both aggravating and mitigating factors such as the following will guide the court –i.Age of the offenderii.Being a first offenderiii.Whether the offender pleaded guilty.iv.Character and record of the offenderv.Commission of the offence in respect of gender based violence.vi.The manner in which the offence was committed on the victim.vii.The physical and psychological effect of the offence on the victim’s family.viii.Remorsefulness of the offender.ix.Possibility of reform and social adaptation of the offender.x.Any other factor the court considers relevant.h.Where the appellant has lodged an appeal against sentence alone, the appellate court will proceed to receive submissions on re-sentencing.i.These guidelines will be followed by the High Court and the Court of Appeal in ongoing murder trials and appeals. They will also apply to sentences imposed under section 204 of the Penal Code before the decision in Muruatetu.

11. From the foregoing therefore, this being a matter where the applicant was convicted and sentenced by a subordinate court, he appealed against conviction and sentence to the High Court his appeal was dismissed and the sentence confirmed, he further Appealed to the Court of Appeal where his Appeal was dismissed, he filed a miscellaneous Application No. 127 of 2018 that was dismissed by the High Court on 19th December 2019 the Appellant is abusing the process by filing Applications that ought not be entertained.

12. In the upshot this court finds this Application to be without merit and dismiss the same is accordingly.i.This court does not have jurisdiction to review the Judgment of Justice Kimaru dated 9th March 2006 which dealt at length as to why the sentence imposed was proper.

13. It is so Ordered.

SIGNED, DATED AND DELIVERED IN OPEN COURT AT NAKURU ON THIS 20TH NOVEMBER 2023MOHOCHI S.MJUDGE