[2023] KEHC 26235 (KLR)

DMK v Republic (Criminal Application E119 of 2021) [2023] KEHC 26235 (KLR) (13 November 2023) (Resentence)

Neutral citation: [2023] KEHC 26235 (KLR)

Republic of Kenya

In the High Court at Naivasha

Criminal Application E119 of 2021

GL Nzioka, J

November 13, 2023

Between

DMK

Applicant

and

Republic

Respondent

Resentence

1. The applicant was charged vide High Court Criminal Case No. 2 of 2014 at Naivasha, with the offence of; murder contrary to section 203 as read together with section 204 of the Penal Code (Cap 63) Laws of Kenya.

2. The particulars of the offence are that, on the night of 6th November 2014 in Gilgil Sub-County within Nakuru County, he murdered LWM.

3. He pleaded not guilty to the charge and the case was fully heard. He was subsequently found guilty, convicted and sentenced to twenty (20) years imprisonment.

4. However, by a chamber summons application filed in court on; 3rd June 2021, he seeks for re-sentencing on the ground that, during sentencing, the court stated that, if he reformed with a better psychological and life outlook, he would have an opportunity at another chance in life.

5. The application is supported by his affidavit where he avers that, he has never appealed against the judgment and sentence against and is only seeking for resentencing. Further, the court has jurisdiction under Article 165 (3)(b) of the Constitution to determine the matter.

6. The application was disposed of through filing of submissions. The applicant in his submissions reiterates that the court has jurisdiction under; Article 22 (1), 23 (1) and 165 (1) of the Constitution of Kenya, 2010, to hear and determine the application. He relied on the case(s) of the Owners of Motor Vessel Lillan “S” vs Caltex oil Kenya Ltd (1989) KLR and Samuel Kamau Macharia vs Kenya Commercial Bank Ltd & 2 Others application No. 2 of 2011.

7. He further submitted that, at the time of his arrest he was a young man aged twenty-four (24) years and is a first offender. That at the time of the offence, he had psychiatric and mental disorders and was in need of parental guidance.

8. Further, he is, remorseful and has attended psychiatric and counselling sessions while in Prison and no longer suffers from disorders nor is he disturbed. That he is a role model to many inmates.

9. Furthermore, he has undertaken several courses and obtained several certificates such as, Plant Operator Certificate from Kenya Institute of Highways and Building Technologies; Focus on the family and Health Education from the Voice of Prophecy Bible Correspondence School; and the Prisoners journey among others.

10. That, his family is willing and ready to accept and live with him. Further, he has developed and gained life skills and hopes to find employment to fend for himself and his aging parents.

11. He submitted that, the sentence of twenty (20) years imprisonment was harsh considering the state of his mind at the time of the offence. That, it does not comply with the objectives of sentencing set out in paragraph 4. 1 of the Judiciary, Sentencing Policy Guidelines.

12. That, having being found to suffer from mental and psychiatric disorders the court should reduce his sentence and/or acquitted him. He relied on the case of; Samuel Munyao Muteti vs RepublicPetition No. 12 of 2019 and Hassan Hussein Yusuf vs Republic Criminal Appeal No. 59 of 2014 where the courts held that a sick person should be in hospital and not prison and directed the appellant to be admitted for treatment.

13. However, the Respondent in submissions dated 17th October 2022, opposed the application on the grounds here below reproduced verbatively that: -a.The applicant was charged with murder and convicted on Manslaughter by Hon. Justice R. Mwongo.b.Upon conviction, proper sentencing procedure was following including of filing of submissions on mitigation and pre-sentence report.c.That the applicant was heard by the court on mitigation and the same was considered by the judge prior to sentencing.d.The Honourable Judge sentenced the applicant to 20 years’ imprisonment in light of the circumstances of the offence mitigation and pre-sentence report.e.The applicant is not entitled to resentencing under Francis Kariako Muruatetu Supreme Court Judgment since he was not sentenced to the mandatory death sentence whose mandatory nature was ruled unconstitutional.f.That the sentence of 20 years is sufficient in light of the circumstances of the case.g.The applicant if dissatisfied should appeal to the court of appeal since this court is Functus Officio.h.We urge this court to dismiss his application forthwith.

14. In addition, and pursuant to the order of the court, the Probation Department filed a pre-sentence report dated; 13th June 2022, which indicates that, the applicant is thirty-three (33) years old and a first born out of four siblings. That, his parents are small scale farmers at Kiptangwanyi village in Gilgil. Further, he completed his secondary education and moved to Gilgil township where he assisted his aunt with her business and subsequently opened his own shop. He was married to the deceased at the time the offence was committed.

15. Furthermore, he accepted the responsibility for committing the offence and is remorseful. That, he attributed the commission of the offence to a mental disorder which was being treated at the time of the offence. Further still, his family members’ visit him regularly while in Prison and they are willing to receive him back and help him settle and re-establish his life.

16. The report further indicates that, the Local Administration states that he has no prior acts of crime, and that, the Community had no issues with him during the four (4) years he was out on bond and therefore his safety is assured if he is released.

17. That the Prison Authority’s report indicates that the applicant has undertaken several rehabilitation programmes., is industrious, disciplined, hardworking, dependable, cooperative and innovative and serves as a voluntary teacher.

18. Furthermore, he has undergone counselling sessions in anger management, coping mechanisms, stress management, drugs and substance abuse, and discussion on social life and skills and has learnt to control his emotions.

19. However, the victim’s family is said to still be in shock and are opposed to the sentence review and prefers the applicant completes his sentence in custody.

20. The report in recommendation states that, the applicant is suitable for a non-custodial sentence and be considered for a three (3) year probation sentence. That, a probation officer will work with him and his family to ensure smooth resettlement and reintegration, and a referral process put in place to monitor his health issues.

21. Be that as it were, the power of the court to entertain the application as herein, is founded on the Supreme Court’s decision in the case of Francis Karioko Muruatetu & Another vs. Republic (supra) where the court stated thus:“(110)We agree with the reasoning of the Courts in the authorities cited and the submissions of the 1st petitioner, the DPP and the amici curiae. Comparative jurisprudence is persuasive and we see no need to deviate from the already established practice. The facts in this case are similar to what has been decided in other jurisdictions. Remitting the matter back to the High Court for the appropriate sentence seems to be the practice adopted where the mandatory death penalty has been declared unconstitutional. We therefore hold that the appropriate remedy for the petitioners in this case is to remit this matter to the High Court for sentencing.(111)It is prudent for the same Court that heard this matter to consider and evaluate mitigating submissions and evaluate the appropriate sentence befitting the offence committed by the petitioners. For the avoidance of doubt, the sentencing re-hearing we have allowed, applies only for the two petitioners herein. In the meantime, existing or intending Petitioners with similar cases ought not approach the Supreme Court directly but await appropriate guidelines for disposal of the same. The Attorney General is directed to urgently set up a framework to deal with sentence re-hearing of cases relating to the mandatory nature of the death sentence - which is similar to that of the petitioners in this case.

22. Having considered the aforesaid, I note that, the law that governs sentencing is settled. Article 50(2)(p) of the Constitution of Kenya 2010, provides the right of the convict to benefit from the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time the offence was committed and the time of sentencing.

23. In the same vein the objective of sentence must be considered. Paragraph 4. 1 of the Judiciary Sentencing Policy Guidelines, stipulates the objectives of sentencing as follows: -a.Retribution: To punish the offender for his/her criminal conduct in a just manner.b.Deterrence: To deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences.c.Rehabilitation: To enable the offender reform from his criminal disposition and become a law abiding person.d.Restorative justice: To address the needs arising from the criminal conduct such as loss and damages. Criminal conduct ordinarily occasions victims’, communities’ and offenders’ needs and justice demands that these are met. Further, to promote a sense of responsibility through the offender’s contribution towards meeting the victims’ needs.e.Community protection: To protect the community by incapacitating the offender.f.Denunciation: To communicate the community’s condemnation of the criminal conduct.

24. In giving directions on the factors to consider while exercising the power of resentencing the Supreme Court in the Supreme Court of Kenya in the aforesaid case of Francis Karioko Muruatetu & Another vs. Republic [2017] eKLR gave guidelines as follows:“vii.In re-hearing sentence for the charge of murder, both aggravating and mitigating factors such as the following, will guide the court;(a)Age of the offender;(b)Being a first offender;(c)Whether the offender pleaded guilty;(d)Character and record of the offender;(e)Commission of the offence in response to gender-based violence;(f)The manner in which the offence was committed on the victim;(g)The physical and psychological effect of the offence on the victim’s family;(h)Remorsefulness of the offender;(i)The possibility of reform and social re-adaptation of the offender;(j)Any other factor that the court considers relevant.”

25. I note that the trial court in its judgment on sentence dated 4th July 2019, considered the decision of the Supreme Court in the Muruatetu case and stated as follows: -“14…. In line with the Muruatetu Case, this court considers that it has a discretion to mete out a sentence uncircumscribed by the mandatory wording of section 204 of the Penal Code which provides that:“Any person convicted of murder shall be sentenced to death.”Undoubtedly, the death sentence is not the only sentence which this court can issue following the Muruatetu decision.”

26. To revert back to the matter, I have considered the application and find that, the case was heard by Hon. Lady Justice, C. Meoli and judgment delivered by Hon. Justice, R. Mwongo, both judges are High Court judges. I hold same original jurisdiction. Therefore, a High Court judge cannot interfere with the decision of another High Court judge. As such any review or revision of the sentence will amount to this court sitting on appeal over its own decision.

27. It follows that, once a court has heard a matter and has pronounced itself on that matter and given a final decree the court cannot sit on the matter again, as the court becomes, functus officio.

28. In the case of; Lucy Wangari Muhia v Republic [2022] eKLR this court pronounced itself as follows: -“15. Functus officio is a latin expression that translates to; “having performed his or her office.” According to Ulpian, after a judge has delivered his judgment, he immediately ceases to be the judge:“hoc jure utimur ut judex qui semel vel pluris vel minoris condemnavit, amplius corrigere sententiam suam non posset; semel enim male vel bene officio functus est.” (see Alexandr Koptev, “Digestae Justinian” The Latin Library at Book 42, Title 1, Note 55, online:The gist of Ulpian’s words is: “[A] judge who has given judgment, either in a greater or a smaller amount, no longer has the capacity to correct the judgment because, for better or for worse, he will have discharged his duty once and for all.” (see Translation in Daniel Malan Pretorius, “The Origins of the Functus Officio Doctrine, with Specific Reference to Its Application in Administrative Law” (2005) 122:4 SALJ 832 at 836).

16. The law of functus officio thus dictates that, decision-makers; judges, administrative officials, or arbitrators, cannot as a general rule re-open their decisions to correct a mistake. There is no opportunity for them to; “do better next time” in the same case because there will be no next time. They must get it right the first time, for that will be their only time.

17. This is contrary to the Lyrics to the song; “Mistake” from the popular children’s cartoon Shimmer and Shine enlighten:“When we make a big mistake.Don’t fret, let’s celebrateCause we’ll get another try (Oh yeah)We’ll do better next time”.

29. Thus if the applicant is not satisfied with the sentence meted out, the only cause of action is to proceeded to the Court of Appeal. In the given circumstances, this court has no jurisdiction to hear this matter and it is struck out for want of jurisdiction

30. It is so ordered.

DATED, DELIVERED AND SIGNED THIS 13TH DAY OF JULY 2023. G. L. NZIOKAJUDGEIn presence of:The applicant present virtuallyMr. Atika for the respondentMs Ogutu: Court Assistant