[2023] KEHC 24883 (KLR)

Chepkwony v Republic (Criminal Petition E001 of 2021) [2023] KEHC 24883 (KLR) (7 November 2023) (Ruling)

Neutral citation: [2023] KEHC 24883 (KLR)

Republic of Kenya

In the High Court at Nakuru

Criminal Petition E001 of 2021

HM Nyaga, J

November 7, 2023

Between

Benard Kipkemoi Chepkwony

Applicant

and

Republic

Respondent

Ruling

1. Undated Notice of Motion seeking mainly for an order that the balance of his sentence be substituted with a probationary sentence in the interest of justice. The Applicant Benard Kipkemoi Chepkwony was charged with the offence of Manslaughter Contrary to Section 202 as read with Section 204 of the Penal Code in Molo SPMCC no 19 of 2012 and upon trial he was convicted and sentenced to serve 30 years’ imprisonment on 19th July, 2013.

2. Being dissatisfied with the said decision, he lodged an Appeal to this court being Criminal Appeal no 161 of 2013 but the same was dismissed on 18th July, 2014.

3. Undeterred, the Applicant filed an Appeal before the Court of Appeal vide Criminal Appeal no E023 of 2022. However, on 4th July,2023 he withdrew the same.

4. On 10th May,2013, the Applicant filed the instant

5. The Petition is premised on the grounds: -a.That this Honourable Court has original and unlimited jurisdiction to hear and determine this petition under Articles 165(3) (9) of the Constitution 2010. b.That the Petitioner has been in custody for over 8 years a period which he has reformed and engaged fruitfully in vocational training.c.That the Petitioner is utterly remorseful of the offence committed and fully regrets the unprecedented circumstances under which the fateful offence happened.d.That the petitioner hails from a poor family and continue to suffer irreparably as a result of the prolonged sentence which has subjected his siblings who relied on him severe suffering.e.That during the conviction and sentence, the petitioner was a young man of tender age and the court did not seek for a probation report or victim’s report in the interest of justice.f.The petitioner’s health continues to deteriorate and would wish to urgently seek for a specialized treatment while serving his probationary sentence.g.That it is in the spirit of constitution that an accused person once convicted should serve the lease severe sentence.h.That the spirit of the constitution is further moving away from retributive to restorative justice.

6. The Application is supported by an affidavit of the Applicant wherein he reiterates the above grounds.

7. The Application was argued through written submissions.

Applicant’s Submissions 8. The Applicant submitted that this court under Article 165(5)(a)(b) of the Constitution is clothed with requisite jurisdiction to hear and determine this case. Reliance was placed on the case of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR for the proposition that a court’s jurisdiction flows from either the constitution or legislation or both and that the court cannot arrogate itself jurisdiction exceeding that which is conferred upon it by the law.

9. The Applicant posited that this court can hear and determine resentencing application. In support of this position, he relied on the cases of Francis Karioko Muruatetu & another v Republic [2017] eKLR, Philip Mueke Maingi & 2 others v Republic [2022] eKLR & William Okungu Kittiny v Republic [2018] eKLR.

10. The Applicant argued that sentencing is an integral part in the trial process. He cited the case of Alister Anthony Pereira v State of Maharashtra where the court held inter alia on sentencing that: -“Sentencing is an important task in the matters of crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done.”

11. The applicant contended that for 11 years he has been in incarceration, he has painfully learnt that crime does not pay, has fruitfully engaged in vocational trainings and acquired viable skills, has undergone counselling session which have led to a total positive change in behaviour that has earned him a recommendation from the prison authorities, has regretted the offence committed and he is now aware of the detrimental effects of being in bad company, he is utterly remorseful of the offence committed and has even endeavoured to seek forgiveness from the deceased family and that he is now of age and cannot be influenced by peer pressure anymore.

12. He urged this court to also consider that he was a first time offender and was intoxicated at the time of commission of the offence.

13. He prayed that this court in determining this case, to be guided by Judiciary Sentencing Policy Guidelines 2016; Mitigating factors as enunciated in the case of Francis Muruatetu v R [2017] eKLR and Article 50(2) (p) of the Constitution 2010.

14. The Applicant further urged the court to invoke section 333(2) of the Criminal Procedure Code and consider the period he served in remand custody pending the hearing and disposal of the trial.

Respondent’s Submissions 15. The state counsel on behalf of the Respondent submitted that the sentence of 30 years meted out against the Applicant was confirmed on Appeal. She argued that the High Court Judge directed that the Applicant will be eligible for parole upon serving 20 years and that to date he has not served 20 years as directed, and as such this court is bereft of jurisdiction to reverse an order of a court of concurrent jurisdiction.

Analysis and Determination 16. The main issues which arise for determination is Whether this Court has jurisdiction to reverse an order issued by a court of concurrent Jurisdiction and whether the orders sought should be granted.

17. The Supreme Court of Kenya, in the case of Republic v Karisa Chengo & 2 others [2017] eKLR stated that:“Jurisdiction” has emerged as a critical concept in litigation. Halsbury’s Laws of England (4th Ed.) Vol. 9 at page 350 thus defines “jurisdiction” as “…the authority which a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for decision.” John Beecroft Saunders in his treatise Words and Phrases Legally Defined Vol. 3, at page 113 reiterates the latter definition of the term ‘jurisdiction’ as follows:“By jurisdiction is meant the authority which a Court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter or commission under which the Court is constituted, and may be extended or restricted by like means. If no restriction or limit is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular Court has cognisance or as to the area over which the jurisdiction shall extend, or it may partake both these characteristics…. Where a Court takes upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given”.

18. It is trite law that a court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law, and that a court cannot expand its jurisdiction through judicial craft. (See Samuel Kamau Macharia & another v KCB & 2 Others App. no 2/2011).

19. The jurisdiction of the High court is provided for under article 165(3) of the Constitution and includes which states: -“Subject to clause (5), the High Court shall have-a)Unlimited original jurisdiction in criminal and civil matters;b)Jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened:c)Jurisdiction to hear an appeal from a decision of a tribunal appointed under this Constitution to consider the removal of a person from office, other than a tribunal appointed under Article 144;d)Jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of-i)The question whether any law is inconsistent with or in contravention of this Constitution;ii)The question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution.iii)Any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; andiv)A question relating to conflict of laws under Article 191; ande)Any other jurisdiction, original or appellate, conferred on it by legislation.

20. It is clearly expressed under Article 165(5) as follows: -“(5)The High Court shall not have jurisdiction in respect of matters— (a) reserved for the exclusive jurisdiction of the Supreme Court under this Constitution; or (b) falling within the jurisdiction of the courts contemplated in Article 162 (2).”

21. Further under Article 165(6) of the Constitution it is stated as follows: -“(6)The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.”

22. It is clear therefore that there is no law which bestows this court with jurisdiction to review a decision by a court of concurrent jurisdiction.

23. The Court of Appeal in Bellevue Development Company Ltd v Francis Gikonyo & 7 others [2018] eKLR in regards to whether a judge has jurisdiction to supervise judges of equal status and jurisdiction held as follows: -“I have no difficulty upholding the learned Judge’s holding that as a judge of the High Court he had no jurisdiction to enquire into or review the propriety of the decisions of the Judges, who were of concurrent jurisdiction as himself. In our system of courts, which is hierarchical in nature, judges of concurrent jurisdiction do not possess supervisory jurisdiction over each other. No judge of the High Court can superintend over fellow judges of that court or of the superior courts of equal status. That much is plain common sense.”

24. In the instant case, my brother Justice Anyara Emukule (as he then was) while determining the Applicants Appeal in regards to sentencing stated as follows: -“10. The Appellant has however called for leniency by this court, that he wishes to reconcile with the family of the deceased. That is a good thought. Choices have consequences. He chose to stab his neighbour to death. He would have been sentenced to life imprisonment. The offence deserved a deterrent sentence. I confirm the sentence with a rider that the Appellant shall not be eligible for parole until he has served at least twenty years from the date of sentence.”

25. The Applicant was sentenced to 30 years’ imprisonment on 19th July,2013. To date he has served 10 years’ imprisonment. The prayer therefore that his remaining sentence to be substituted with a probation period cannot be granted as that will be tantamount to reversing an order made by a court of concurrent jurisdiction.

26. I also note that the Applicant has urged this court to invoke section 333(2) of the Criminal Procedure Code and consider the period he served in remand custody pending the hearing and disposal of the trial. This issue was not considered by either the appellate or the trial court.

27. Section 333(2) of the Criminal Procedure Code, states as follows:(2)“Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code. Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody”.

28. It has been stated that in invoking section 333(2) of the Criminal Procedure Code, the court is not required to embark on an arithmetic journey to calculate time to be spent in custody. In the case of Bukenya v Uganda (Criminal Appeal no 17 of 2010) [2012] UGSC 3 (29 January 2013) it was held that;“Taking the remand period into account is clearly a mandatory requirement. As observed above, this Court has on many occasions construed this clause to mean in effect that the period which an accused person spends in lawful custody before completion of the trial, should be taken into account specifically along with other relevant factors before the court pronounces the term to be served. The three decisions which we have just cited are among many similar decisions of this Court in which we have emphasized the need to apply Clause (8). It does not mean that taking the remand period into account should be done mathematically such as subtracting that period from the sentence the Court would give. But it must be considered and that consideration must be noted in the judgement.”

29. It is my understanding of the above decision that the court is only required to take account of the time spent in remand custody. This can be done by simply stating when the sentence will commence and the period to include the time spent in custody.

30. The provisions of section 333(2) of the Criminal Procedure Code was the subject of the decision in Ahamad Abolfathi Mohammed & another v Republic [2018]eKLR where the Court of Appeal held that:-“The second is the failure by the court to take into account in a meaningful way, the period that the appellants had spent in custody as required by section 333(2) of the Criminal Procedure Code. By dint of section 333(2) of the Criminal Procedure Code, the court was obliged to take into account the period that they had spent in custody before they were sentenced. Although the learned judge stated that he had taken into account the period the appellants had been in custody, he ordered that their sentence shall take effect from the date of their conviction by the trial court. With respect, there is no evidence that the court took into account the period already spent by the appellants in custody. “Taking into account” the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody. It is not enough for the court to merely state that it has taken into account the period already spent in custody and still order the sentence to run from the date of the conviction because that amounts to ignoring altogether the period already spent in custody. It must be remembered that the proviso to section 333(2) of the Criminal Procedure Code was introduced in 2007 to give the court power to include the period already spent in custody in the sentence that it metes out to the accused person. We find that the first appellate court misdirected itself in that respect and should have directed the appellants’ sentence of imprisonment to run from the date of their arrest on 19th June 2012. ”

31. The same court in Bethwel Wilson Kibor v Republic [2009]eKLR expressed itself as follows:-“By proviso to section 333(2) of the Criminal Procedure Code where a person sentenced has been held in custody prior to such sentence, the sentence shall take into account of the period spent in custody. Ombija J, who sentenced the appellant did not specifically state that he had taken into account the 9 years’ period that the appellant had been in custody. The appellant told us that as at 22nd September 2009 he had been in custody for 10 years and one month. We think that all these incidents ought to have been taken into account in assessing sentence. In view of the foregoing, we are satisfied that the appellant has been sufficiently punished. We therefore allow this appeal and reduce the sentence to the period that the appellant has already served. He is accordingly to be set free forthwith unless otherwise lawfully held.”

32. The Judiciary Sentencing Policy Guidelines provide as follows:“The proviso to section 333(2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody if the convicted person had been in custody during the trial. Failure to do so impacts on the overall period of detention which may result in an excessive punishment that is not proportional to the offence committed. In determining the period of imprisonment that should be served by an offender, the court must take into account the period in which the offender was held in custody during the trial.”

33. I have perused the trial court record and I note that the trial court meted the sentence against the Applicant without specifically stating the period which it was to commence. This means that the applicant’s term commenced on the day he was sentenced. This left out the period that he had spent in remand custody, prior to his conviction and sentencing.

34. In the case of Osman Mohamed Balagha v Republic [2021] eKLR Aroni J. noted that ;“It was not for the accused to remind the trial Court while sentencing to consider the time he spent in custody, the law obligates the court to consider the time the convict was incarcerated before conviction. From the record it appears that the trial court failed to consider the same.”

35. I am therefore of the view that the trial court failed to comply with the mandatory provisions of the said section 333(2) of the Criminal Procedure Code.

36. The trial court record shows that the Applicant was first arraigned in Court on 4th January, 2012. He was in remand custody throughout the trial.

37. I therefore correct the error and order that the applicant’s sentence ought to have commenced from this date of 4. 1.2012.

38. It is so ordered.

DATED, SIGNED AND DELIVERED AT NAKURU THIS 7TH DAY OF NOVEMBER, 2023. H. M. NYAGAJUDGEIn the presence of;C/A MathewMs Murunga for stateApplicant