[2023] KEHC 25145 (KLR)

Ikunda v Republic (Criminal Revision E034 of 2023) [2023] KEHC 25145 (KLR) (7 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25145 (KLR)

Republic of Kenya

In the High Court at Chuka

Criminal Revision E034 of 2023

LW Gitari, J

November 7, 2023

Between

Francis Murithi Ikunda

Appellant

and

Republic

Respondent

(From the original conviction and sentence in Criminal Case No. 11 of 2018 of the High Court at Chuka)

Ruling

1. The applicant, Francis Muriithi Ikunda, vide undated Chamber Summons filed in court on 15/2/2023 seeks orders that-1. That the sentence imposed on him by this court in court File No.011/2018 be reviewed.

2. The Summons is supported by affidavit sworn on 6/2/2023 where he deposes that he was charged with murder contrary to Section 203 as read with section 204 of thePenal Code. After a full trial he was found guilty and was sentenced to serve fifteen years imprisonment. While relying on the case of Bernard Mulira Musyoka v Republic Criminal Appeal No. 25/2018 (No citation) he deposes that the Court of Appeal did not prohibit court’s below it from ordering sentence review in any matter pending before those (sic) courts. That this court has jurisdiction under section 165(3) (b) of theConstitution to hear and determine this matter.

3. The respondent opposed the summons and urged the court to find that it lacks jurisdiction to review its sentence. They urged the court to reject the application. The brief background in this matter is that the applicant was charged with murder contrary to section 203 as read with section 204 of the Penal Code. He denied the charge. However, after a full trial he was found guilty of the offence Manslaughter under section 207 of the Penal Code and sentenced to serve fifteen (15) years imprisonment. It is against this sentence that the applicant is seeking a review.

4. This application is brought under various articles of the Constitution and in particular, the provisions of article (50(2) (p)& (q). This article provides as follows:-“50(2)Every accused person has the right to a fair trial, which includes the right—(p)to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing; and(q)if convicted, to appeal to, or apply for review by, a higher court as prescribed by law.”The applicant was found guilty of Manslaughter under section 207 of the Penal Code. The Section provides:“When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation as hereinafter defined, and before there is time for his passion to cool, is guilty of manslaughter only.”The punishment for the offence of Manslaughter is provided under section 205 of the Penal Code it provides:-“Any person who commits the felony of manslaughter is liable to imprisonment for life.”

5. The Jurisdiction of the high court to review is donated by article 165 (6) & (7) of the Constitution. The article provides:-“(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.7)For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.”The jurisdiction is supervisory and it extended to the High court to review the decisions and orders of the sub-ordinate court. It grants the High Court supervisory jurisdiction over Sub-ordinate Courts.

6. The High Court exercises jurisdiction of revision over Sub-ordinate Court on orders issued by the Sub-ordinate Court. Section 362 of the Criminal Procedure Code provides as follows:-“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.”As can be seen from these provisions, the High Court lacks jurisdiction to review its own sentence. This court lacks jurisdiction to review its sentence to a lesser sentence after it has sentenced the accused.The accused was sentenced to serve fourteen (14) years which is far below the maximum sentence for Manslaughter which is life imprisonment. The court properly exercised its discretion as it did not impose the maximum sentence. The accused benefited as the sentence imposed was less severe. It is trite that the jurisdiction of the court is donated by the Constitution and the Statute. As analysed above this court lacks jurisdiction to review its own sentence. The accused has raised the issue that the time spent in custody was not considered. Section 333 of the Criminal Procedure Code provides:-(1)A warrant under the hand of the judge or magistrate by whom a person is sentenced to imprisonment, ordering that the sentence shall be carried out in any prison within Kenya, shall be issued by the sentencing judge or magistrate, and shall be full authority to the officer in charge of the prison and to all other persons for carrying into effect the sentence described in the warrant, not being a sentence of death.(2)Subject to the provisions of section 38 of the Penal Code 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.”

7. The records shows that time spent in custody awaiting trial was not considered. The above section is clear that the period should be considered to reduce the sentence which the court ultimately imposes.In this regard the application has merits. The record shows that the 1st appearance by the accused in court was on 5/7/2018. He was released on bail on 27/7/2018. He was out on bail upto the date the sentence was passed. As such the accused was in custody for a total of twenty two (22) days before he was released on bailIn the circumstance I order that the sentence imposed shall be reduced by twenty two days.The Deputy Registrar to serve to order on the Officer -in-charge G.K. Prison where the accused is serving sentence.

DATED, SIGNED AND DELIVERED AT CHUKA THIS 7TH DAY OF NOVEMBER 2023. L.W.GITARIJUDGE