[2022] KEHC 14079 (KLR)

Kagera & another v Director of Public Prosecution (Criminal Petition E020 of 2021) [2022] KEHC 14079 (KLR) (11 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14079 (KLR)

Republic of Kenya

In the High Court at Machakos

Criminal Petition E020 of 2021

MW Muigai, J

October 11, 2022

IN THE MATTER OF PETITION/MISCELLANEOUS APPLICATION E020 OF 2021 ARISING FROM CRIMINAL CASE NO. 487 OF 2012 AT KANGUNDO AND HIGH CR. APPEAL NO.209 OF 2013 AT MACHAKOS AND COURT OF APPEAL NO.177 OF 2017 AT NAIROBI AND IN THE MATTER OF: ARTICLE 22(1), 23, 25 (C) AND 50 OF THE CONSTITUTION AND IN THE MATTER OF: ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLE 27(1), 28, 47(1), 48 AND 51, OF THE CONSTITUTION OF KENYA ARTICLES 23 (1) (3), 24, 50 (2) (Q) OF THE CONSTITUTION OF KENYA AND SECTION 46 OF THE PRISONS ACT 2016, AND SECTION 333 (2) CRIMINAL PROCEDURE CODE

Between

Lilian Wanjiku Kagera

1st Petitioner

Mary Wanjiku Nduta

2nd Petitioner

and

Director of Public Prosecution

Respondent

Ruling

Background 1. The petitions raise grave violations of the petitioner’s fundamental rights and freedoms which are guaranteed under the Constitution.

2. These rights include the right to a fair trial as under article 25 of the Constitution, the right to a fair trial cannot be limited, and the right to benefit from the least prescribed sentence as guaranteed under article 50 (2) of the Constitution.

3. The petitioners in this case are convicts whose sentence has not considered the time spent in custody while undergoing trial as required under Sections 333 (2) of the Criminal Procedure Code which has a ripple effect of adversely influencing their right to remission as provided for under Section 46 (3) of the Prisons Act and therefore are serving excessive sentences far from the intention of the sentencing court.

4. The petitioners herein are currently being held at Langata Women Prison, serving 25 years sentence emanating from the offence of Robbery with Violence contrary to Section 296 (2) of thePenal Code.

5. The petitioners spent one year in remand from September 29, 2012 upto 21st June 2013 in Criminal case No 487 of 2012 at Kangundo and High Court Appeal No 209 of 2013 at Machakos, for the offence of Robbery with Violence. The above period spent in remand is what the petitioner seeks to be accounted for.

6. The petitioners second appeal at the Court of Appeal in Nairobi vide appeal No 177 of 2017 was dismissed. In fact the Court of Appeal dismissed the appeal on conviction and set aside the death sentence imposed by the trial court and upheld by the High Court and substituted it thereof with a sentence of 25 years imprisonment from the date of conviction.

7. The petitioners seek for the interference with the order that the sentence should commence from the date of conviction as the law under Section 333 (2) of the CPCclearly provides that all sentences should commence from the date of arrest.

8. The petitioners seek to persuade this Honourable Court to review their 25 years sentence passed by the Court of Appeal downwards using its statutory review powers under Section 362 and 364 of the Criminal Procedure Code, and guided by the decision of the Constitutional Court in the case ofProtus Buliba Shikuku –v- Attorney General, [2012] eKLR and the Supreme Court decision in the case of Jasbir Singh Rai & 3 Others –v- Tarlochan Singh Rai Estate & 4 Others [2013] which both held that under article 165 of the Constitutionthe High Court has the posers to address questions where fundamental freedoms have been violated.

9. In the case of Sango Mohamed Sango & Another –v- Republic, Criminal Appeal No 1 of 2013 [2015], Makhandia, Ouko. M’inoti JJA observed that these sections were couched in permissive terms, the Appellate Court has held over time that it is imperative for the trial court to afford an accused person an opportunity to mitigate and the trial court should record the mitigation factors, were couched in permissive terms, the Appellate Court has held over time that it is imperative for the trial court to afford an accused person an opportunity to mitigate the trial court should record the mitigation factors.

Respondent’s written submissions Legal analysis 9. Section 50 (2) of the Constitutionstates “Every accused person has the right to a fair trial, which includes the right-(q)if convicted, to appeal to, or apply for the review by, a higher court as prescribed by law”.

10. The functus officio principle was conclusively dealt with by the Court of Appeal in Telkom Kenya Limited –v- John Ochanda (suing on his own behalf and on behalf of 996 former employees of Telkom Kenya Limited)[2004] eKLR where Githinji, Karanja & Kiage JJA observed thus:“Functus officio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon. It is a doctrine that has been recognized in the common law tradition from as long as the latter part of the 19th century. In the Canadian case of Chandler v Alberta Association of Architects [1989] 2 SCR 848, Sopnika J traced the origins of the doctrines as follows (at p 869);

11. Once a Court becomes functus officio, the only orders it can grant are review orders which are an exception to the functus officio doctrine. 12. This was aptly summarized in the case of Jersey Evening Post limited v Al Thani[2002] 542 at 550 which was cited and applied by the Supreme Court inRaila Odinga & 2 Others v Independent Electoral & Boundaries Commission & 3 others [013] eKLR that:“A court is functus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been concluded, and he court functus, when its judgment or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or later its decision; any challenge to its ruling or adjudication must be taken to a higher court if that right is available.”

Determination 13. The Court considered the petition and submissions by parties and the issues that emerge for determination are;Whether this Court has requisite jurisdiction to interfere with the sentence meted out by the Court of Appeal to the 4 Accused persons /appellants of 25 years to interfering with the sentence to include the computation of sentence with effect from the date the Accused persons were arraigned in the Trial Court to the date of sentencing.

14. The chronology of events leading to this petition are as follows;a.The 4 Accused persons namely; Philip Kaviti Mutinda, Joshua Ochieng Obwai, Lilian Wanjiku Kagera & Mary Wanjiru Nduta were arraigned before Kangundo Principal Magistrate’s Court on October 1, 2012 and the plea-taking was on October 17, 2012 where the Accused persons pleaded not guilty. The Accused persons were charged with robbery with violence c/s 296(2) of Penal Code and robbed Dancan Muthama Mutiso motor vehicle Reg KBN 667 W Toyota Probox and killed the said Dancan Muthama Mutiso.b.The accused persons were granted bond on 6/11/2012 of Ksh 1 million bond or Cash Bail Ksh 500,000/- and was reduced on 9/11/2012 to Ksh 200,000/- cash bail. The Accused persons remained in custody during trial and judgment was delivered on 21/6/2013 and were sentenced to death sentence.c.The Appellants lodged appeal in the High Court Criminal Appeal 209 of 2013 (consolidated with Criminal Appeals 210,272 & 273 of 2013) before Hon L.N. Mutende LJ & Hon B.Thuranira LJ who delivered judgment on 30/10/2014 and upheld both conviction and sentence of death penalty.d.The Appellants lodged appeal in the Court of Appeal Criminal Appeal 177 of 2016 where Hon R.N. Nambuye Hon A.K.Murgor & S.Ole Kantai JJA upheld conviction but set aside sentence of death penalty imposed and substituted it to 25 years imprisonment.

15. The Appellants sought that this Court reviews the 25 year sentence passed by the Court of Appeal downwards by virtue of Sections 362 & 364 & 333(2) of the Criminal Procedure Code.

16. In addition, the Appellants feel that in resentencing the Court of Appeal did not give the Appellants opportunity to mitigate before a sentencing court as required by sections 216 & 329 of the Criminal Procedure Code. The mitigating factors include 1st offenders, good conduct and behavior and industry while in prison which would inform on resentencing.

Analysis Jurisdiction 17. It is now trite and it is of judicial notice that where issues of jurisdiction arise either on the motion of the court or upon being raised by the parties, these have to be determined first.In the case ofOwners of Motor Vessel ‘Lillian’ versus Caltex Oil Kenya Ltd[1989] KLR I Nyarangi JA (as he then was) stated;“By jurisdiction is meant 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 its decision. The limits of this authority are imposed by a statute, charter or commission under which the court is constituted and may be extended or restricted by the 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 cognizance, to the area over which the jurisdiction shall extend or it may partake of both these characteristics, where a court takes it upon itself to exercise a jurisdiction it does not possess its decision amounts to nothing. The moment a court discovers that it has no jurisdiction, it has to down its tools. Jurisdiction must be acquired before judgment is given—"In the case ofBoniface Waweru Mbiyu versus Mary Njeri & Anor Misc. application No639 of 2005 where J.B. Ojwang J stated;“The entry point into any court proceedings is jurisdiction. If a Court lacking jurisdiction to hear and determine a matter overlooks that fact and determines the matter its decision will have no legal quality and will be a nullity. Jurisdiction is the first test in the legal authority of a court or tribunal and its absence disqualifies the court or tribunal from determining the question--."In the case of Desai v Warsame [1969] EA 350 where the Court held inter alia that: - "No court can confer jurisdiction on itself."

18. The petitioners relied on Sections 362 & 364 of Criminal Procedure Codewhich donates power /jurisdiction of the High Court to supervise and/or revise orders by the subordinate Court and provides as follows;362. Power of High Court to call for recordsThe 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.364. Powers of High Court on revision(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;……………….(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.

19. The Office of Director of Public Prosecution submitted that the High Court lacks requisite jurisdiction to adjudicate over the Appellant’s application as the matter/case has gone through the legal processes from the Trial Court, the High Court & the Court of Appeal. Therefore, the High Court is functus officio and cannot relook and reconsider the merits of the case and undertake resentencing.

20. This Court in Machakos Criminal Appeal No 209 of 2013 upheld the Trial Court conviction and sentence. The appeal was before a court of similar, equal, competent and concurrent jurisdiction to this Court. This Court is functus officio. Therefore, this Court concedes it lacks appellate jurisdiction to reopen and reconsider merits of the sentence as the Appellants have exhausted the original and appellate jurisdiction upto the Court of Appeal.

21. This Court lacks jurisdiction to consider the merits of the application of Sections 216 & 329 of Criminal Procedure Code on whether The Appellants had the opportunity to mitigate before the resentence from death penalty to 25 years imprisonment imposed by the Court of Appeal whose decisions bind this Court.

22. This Court also lacks jurisdiction to consider mitigating factors of good conduct and industry with a view to proving rehabilitation as one of the tenets of sentencing. Conviction and sentence are final as per the Judgment by the Court of Appeal Criminal Appeal 177 of 2016.

Section 333(2) of the Criminal Procedure Code 23. In the reliefs sought by the applicants, this court is urged to apply the provisions of Section 333(2) of the CPCthat the period the applicants served in remand during Trial be factored in computing the sentence the applicants will serve of the 25 years imprisonment.

24. The Judiciary Sentencing Policy Guidelines at paragraph 7. 10 and 7. 11 is to the effect that 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.

25. In the case of Vincent Sila Jona & 87 Others v Kenya Prison Service & 2 Others [2021] eKLR in petition 15 of 2020, Hon G.V Odunga J (as he then was) recognized the mandatory compliance of Section 333 (2) Criminal Procedure Code and held;a)A declaration that all Courts are enjoined by Section 333(2) of CPC in imposing sentences other than sentence of death to take into account the period spent in custody.b)A declaration that those who were sentenced in violation of the said section are entitled to have their sentences reviewed by the High Court in order to determine their appropriate sentences.c)A declaration that section 333(2) applies to the original sentence as well as the sentence imposed during resentencing.d)A declaration that in determining “admission” by the prison authorities for the purposes of section 46(2) of the Prisons Act, the relevant date is the date when the prisoner was first admitted to prison upon conviction and not the date of resentencing.e)That, any review of the sentences be considered on a case to case basis.

26. Section 333(2) of the Criminal Procedure Code provides that:“(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.”

27. In the case of Ahamad Abolfathi Mohammed & Another v Republic(supra) and in Bethwel Wilson Kibor v Republic, CA at Eldoret Cri Appeal No 78 of 2009 that the period spent in custody must be considered before sentencing and held that:-“..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…”

Computation of Sentence 28. The applicants in their submissions had recourse to the following Constitutional articles to fortify their position on computation of sentence in compliance with Section 333 (2) Criminal Procedure Code;Article 50 (q) CoK 2010provides;Every accused person has the right to a fair trial, which includes the right 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; ……..

29. Article 27 ofCoK 2010 provides; for Equality and freedom from discrimination(1)Every person is equal before the law and has the right to equal protection and equal benefit of the law.

30. The DPP relied on article 50 (q) CoK 2010that provides;if convicted, to appeal to, or apply for review by, a higher court as prescribed by law.

31. Article 23CoK 2010 provides for authority of courts to uphold and enforce the Bill of Rights as follows;(1)The High Court has jurisdiction, in accordance with article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.

32. Article 165 of CoK 2010 provides;(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

33. The reasoning above is derived by the applicants from the following case-law;Protus Buliba Shikuku v Attorney General Constitutional Reference No 3 of 2011-Kisumu High Court [2012] eKLR LJ R Nambuye (as she then was) observed;It is common around that the petitioner herein has exhausted his undoubted right of appeal up to the then highest court of appeal of this jurisdiction namely the Court of Appeal culminating in its dismissal by the said Court of Appeal on the 26thday of June, 2009. That we have not been approached in an appellate jurisdiction to overturn that decision in our capacity as an appellate court over the Court of Appeal not withstanding that there is no such jurisdiction vested in this court being a Court of inferior jurisdiction to the Court of Appeal.That instead, the petitioner wishes us to interfere with that decision partially from a constitutional front alleging a breach of a fundamental right. We have said partially because the petitioner's counsel has submitted before us that they are not complaining about the conviction and sentence ………………….In a unique way, the superior court is being asked to interfere with a decision of the Court of Appeal. We are in agreement that article 23 of the current 2010 Constitution as read with article 165(1) 3(a)(b) (d) (i) (ii) have donated the same mandate without exception to this superior court and for this reason of donation of jurisdiction without exception we feel confident that we are properly seized of the petitioner/'s complaints which arise from an alleged act of omission or commission by the courts of this jurisdiction as laid out in the petition.

34. In the instant petition, the applicants posit that without application of Section 333(2) CPCfrom resentencing on Appeal would make the applicants serving excessive sentences amount to inhuman and degrading treatment and therefore a violation of article 29(d) and (f) of CoK 2010.

35. The Court of Appeal Judgment of June 18, 2021 reads in part;Considering all these factors, we think that we should interfere with the sentence that was imposed by the Courts below. The appeal on conviction is dismissed. We set aside the sentence of death imposed and substitute thereof a sentence of 25 years imprisonment from the date of conviction.

36. The Trial Court Judgment of June 21, 2013 the applicants and others were sentenced to the death penalty. The High Court judgment of 30/10/2014 upheld both conviction and sentence of death penalty. The Court judgments did not factor the period/time the applicants were in custody during trial culminating with the conviction and sentence.

37. Therefore, the petitioner’s sentences are not inclusive of the time spent in remand and violate the principle of equality under article 27(1) of CoK 2010. The applicants challenge their constitutional rights protected by articles 27 & 29 CoK 2010 on equality and freedom from discrimination. It was also noted that the right to a fair trial extends to the sentence and by virtue of article 50(2)(p) of CoK 2010; an accused person should benefit from the least prescribed sentence.

38. As rightly articulated by the ODPP, the applicants ought to ventilate their claim (s) as prescribed by article 50 (q) CoK 2010and from the Court Record the applicants have pursued appeals to Higher Courts as prescribed by law. The Court Record also confirms that the issue of computation of sentence did not arise and/or was not relevant until the death penalty was substituted by the Court of Appeal with a custodial sentence of 25 years from the date of conviction.

39. Since the Trial Court’s sentence was substituted with 25 years imprisonment by the Court of Appeal in substitution of Trial Court’s sentence, whereas this Court is inferior to the Court of Appeal and bound by its decisions, with respect, the question of computation of 25 years imprisonment is raised for the 1st time in relation to the Trial Court’s ‘new’ substituted sentence of 25 years. Therefore, by power donated by the CoK 2010, this Court is called upon to ensure the current sentence by the Trial Court is in compliance with the law including Section 333(2) CPCand also by virtue of article 23 & 165 (3) CoK 2010 question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened.

40. In the case of Vincent Sila Jona & 87 Others v Kenya Prison Service & 2 Others petition 15 of 2020 GV Odunga J ( as he then was) stated as follows;A holistic consideration of the above provisions clearly show that this court has the power to redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights and one such violation is the denial or threat of denial of freedom without a just cause such as where the sentence that a person risks serving is in excess of the sentence lawfully prescribed one by failing to comply with section 333(2) of the Criminal Procedure Code. The court is therefore empowered to do so in the exercise of its supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, as long as that person, body or authority is not a superior court. Therefore, a person who is faced with such a situation may well invoke the revisionary powers of the High Court pursuant to section 362 of the Criminal Procedure Code. In my view, an appeal is not necessary in those circumstances.

Conclusion 41. The Court of Appeal Judgment of June 18, 2021 substituted the Trial Court’s sentence from death penalty to 25 years imprisonment. The Trial Court had no opportunity to address the issue of computation of sentence at the time due to mandatory death penalty. At this stage of the substituted sentence the computation of the sentence has been raised in this Court as a violation of a Constitutional right and hence ought to be addressed without the Court reopening and reconsidering the merits or otherwise of conviction and sentence due to lack of jurisdiction.

42. The computation of sentence as prescribed by Section 333(2) CPCis now raised and the record confirms that the period in custody before conviction was not factored.

43. Whereas this Court lacks jurisdiction to entertain the question of conviction and resentencing, the computation of sentence provided by Section 333(2) CPCis to be factored in the 25 years, to include the time the applicants were in custody before conviction and sentence only.

Disposition 44. The Charge Sheet /Information confirms that the applicants were arrested on September 29, 2012 and arraigned in Court on October 1, 2012. The applicants remained in custody during trial and were convicted and sentenced on June 21,2013 a period of 6 months.

45. These 6 months served by the applicants while in custody during trial shall be factored in the computation of 25 years imprisonment from the date of conviction.

DELIVERED DATED & SIGNED IN OPEN COURT IN MACHAKOS ON 11TH OCTOBER 2022. (VIRTUAL /PHYSICAL HEARING)M.W. MUIGAIJUDGE