[2020] KEHC 4602 (KLR)
The court found that the applicant's sentences had already been reviewed and ordered to run concurrently by the High Courts at Kisii and Nakuru, resulting in a total custodial sentence of 30 years. The court held that any further attempt to vary or suspend the sentence would amount to re-litigating an issue already...
Source-derived case information.
- Citation
- [2020] KEHC 4602 (KLR)
- Parties
- Applicant: George Bikeri Nyakundi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 19 of 2020
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Probation or Suspension of Sentence
- Outcome
- application dismissed
- Judges
- AG Ndung'u
- Legal Topics
- Sentencing Review, Probation Application, Concurrent Sentences, Health Grounds in Sentencing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Bikeri Nyakundi
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Probation or Suspension of Sentence
Legal Issues
- 1 Whether the applicant is entitled to serve the remainder of his custodial sentence on probation or have it suspended.
- 2 Whether the court can further vary or review sentences already reviewed and ordered to run concurrently by competent courts.
- 3 Whether the applicant's health condition justifies the grant of probation or suspension of sentence.
Ratio Decidendi
The court found that the applicant's sentences had already been reviewed and ordered to run concurrently by the High Courts at Kisii and Nakuru, resulting in a total custodial sentence of 30 years. The court held that any further attempt to vary or suspend the sentence would amount to re-litigating an issue already determined and would undermine the finality of judicial decisions. While the court acknowledged the applicant's health challenges and good conduct in prison, it concluded that these factors did not constitute sufficient grounds for granting probation or suspension of the sentence. The appropriate remedy for the applicant's health concerns is for the prison authorities to...
Court Disposition
application dismissed
Orders
- The application to serve the remainder of the sentence on probation or to have it suspended is dismissed.
- The prison authorities are required to accord the applicant necessary medical attention.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CORAM: A.K NDUNG’U J
MISCELLANEOUS CRIMINAL APPLICATION NO 19 OF 2020
GEORGE BIKERI NYAKUNDI...................................APPLICANT
VERSUS
REPUBLIC................................................................RESPONDENT
RULING
BACKGROUND
1. The applicant herein,George Bikeri Nyakundi, was charged, convicted and sentenced to death for the offence of robbery with violence on the 7th July 2003 in Nyamira Senior Resident Magistrate’s Court Criminal Case Number 109 of 2003. He filed a Constitutional Petition Number 51 of 2018at this Court before Majanja J and he was resentenced to 20 years imprisonment.
2. The applicant was also charged together with others in Nakuru Chief Magistrate’s Court Criminal Case Number 55 of 2003 with 3 counts of robbery with violence, 2 counts of attempted robbery with violence and 2 counts of being in possession of a firearm and ammunition. The applicant was convicted and sentenced to death. The applicant filed an application for re-sentencing, Miscellaneous Criminal Application No. 46 of 2018 at Nakuru High Court, and was re-sentenced to 30 years for the 2 counts of attempt robbery with violence and 2 counts of robbery with violence all the sentences running concurrently.
3. The applicant then filed Miscellaneous Criminal Application No. 93 of 2019seeking that the 20 years imprisonment meted in Constitutional Petition No. 51 of 2018 at Kisii High Court and 30 years imprisonment in Miscellaneous Criminal Application No. 46 of 2018 at Nakuru High Court to run concurrently. I allowed the application on 9th January 2020.
THE APPLICATION
4. The applicant has now filed this current application seeking to serve the remainder of his sentence on probation and/or in the alternative that the remainder of his sentence be suspended.
5. This is premised on the ground that he has already served 18 years and the remainder of his custodial sentence is only 1 ½ years. He claims to be suffering from a chronic disease and is in need of specialized treatment under the care of a specialist doctor.
6. The applicant also alleges that he has exemplified good behavior and is now a role model to the inmates having risen to the rank of “trustee” which is the highest reformatory stage as provided for under the provisions of the Prisons Act Cap 90 of the Laws of Kenya and awarded by the Commissioner General of Prisons.
7. It is the applicant’s case that he has gone through various trainings among them, tailoring grade 3 and training in biblical studies.
8. When the application came up for hearing Mr. Kaba, counsel for the applicant, in his oral submissions reiterated the grounds raised in the application.
9. I have considered the application, the supporting affidavit, and the submissions filed as well as the authorities relied upon.
10. Mr. Kaba cited the case of Chris Kasamba Karani v RepublicMisc. Criminal Application No 52 of 2018 in support of the applicant’s case. In Chris Kasamba Karani v Republic (supra), Ngugi J substituted the death sentence imposed on the applicant therein with a custodial sentence equal to the term served plus a probationary period of three years.
11. As borne out of record, the applicant through the Constitutional Petition Number 51 of 2018 at Kisii High Courtwas re-sentenced to 20 years imprisonment while in Nakuru High Court Miscellaneous Criminal Application No. 46 of 2018he was re-sentenced to 30 years for the 2 counts of attempt robbery with violence and 2 counts of robbery with violence, the sentences running concurrently.
12. That would mean that he would serve the 30 years in custodial sentence as the 20 year sentence is served concurrently with the 30 year sentence. The effect of it is that he should serve a total of 30 years in jail and not 20 years as claimed in his application.
13. It is clear that the High Court both at Nakuru and at Kisii has previously reviewed the applicant’s sentences to 30 years and 20 years in prison. This court proceeded to make a further order that the sentences were to run concurrently.
14. By so doing, the courts were clearly alive to the principles of sentencing and the dictum enunciated in the now famous Muruatetu case.
15. In view of the above, any further attempt to vary the sentences would be unwelcome. It is tantamount to re-litigating an issue already dealt with by the court.
16. This court appreciates the stated health challenges facing the applicant in prison. The best the court can do is to require he prison authorities to accord the applicant necessary medical attention.
17. Having considered the application herein in its entirety, I am persuaded that the same lacks merit and I proceed to dismiss the same.
Dated, SignedandDeliveredat KISIIthis24thday ofJune, 2020.
A. K. NDUNG'U
JUDGE