[2022] KEHC 643 (KLR)

Kebati v Republic (Criminal Revision E006 of 2021) [2022] KEHC 643 (KLR) (14 June 2022) (Ruling)

Neutral citation: [2022] KEHC 643 (KLR)

Republic of Kenya

In the High Court at Machakos

Criminal Revision E006 of 2021

MW Muigai, J

June 14, 2022

(PM MAVOKO CT S.0. 29 OF 2014)

Between

Alex Mosoti Kebati

Applicant

and

Republic

Respondent

Ruling

Trial Court Judgment 1. The applicant was charged with rape contrary to Section 3 (1) (a) as read with section 3(3) of the Sexual Offences Act.

2. In the alternative, the Applicant was charged with committing an indecent act with a child contrary to Section 11(A) of the Sexual Offences ActNo.3 of 2006.

3. The Trial Magistrate convicted and sentenced the Appellant to serve ten (10) years imprisonment.

High Court Judgment 4. Aggrieved by this decision he appealed before this court vide Machakos High Court Criminal Appeal Number 34 of 2017.

5. On 17th October 2018, the Honourable Justice D.K Kemei dismissed the appeal and upheld both the conviction and sentence for the charge of defilement.

Chamber Summons 6. The Applicant filed an undated Chamber Summons on 19th January 2021 seeking the following orders, That;a.The court invokes the provision of Section 137 I (2a) of theCriminal Procedure codeb.The court further invokes the provisions of Article 50 (p) of the Constitutionc.The court tender mercy and justice and be able to review the sentence downward while invoking the principle of natural justiced.The court be pleased to note that the applicant is a first offendere.The court find that the applicant is meritorious and grant orders that it deems fit to as a reprievef.The court invoked the provisions of section 333(2) of the Criminal Procedure Code and order that the sentence start from the date of arrested, 5th November 2014 to 26th November 2015.

7. He has filed a supporting affidavit that has not been commissioned nor dated in which he states that he was in remand for 1 year 1 month which was not taken into consideration during sentencing and asked for leniency as he is a first offender.

Applicant’s Submissions 8. The Applicant filed submissions on 3rd March 2022 where he submitted that since he was arrested on 5th November 2014 and has been in custody until he was sentenced. He relied on section 333(3) of the Criminal Procedure Code and the case of Ahamad Mohammed & Another vs Republic [2018] eKLR to support his position.

9. He also relied on Para 7. 10 of the Sentencing Policy Guidelines that states;7. 10 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.7. 11 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.

10. He cited the Judiciary Criminal Procedure Bench Book (2018) Pg 122 Paragraph 45.

Respondent’s Submissions 11. The Respondent filed submissions on 10th of March 2022 in which counsel submitted that the Application is un-procedural and an abuse to the structure of courts and should be dismissed. He submitted that the Applicant should first exhaust his right to appeal at the Court of Appeal as this court is functus officio. Reliance was placed on the cases of Telkom Kenya Limited v John Ochanda (Suing On His Own Behalf and on Behalf Of 996 Former Employees of Telkom Kenya Limited) [2014] eKLR and Raila Odinga & 2 Others vs Independent Electoral & Boundaries Commission& 3others [2013] eKLR.

Determination 12. I have considered the application and written submissions filed on behalf of the respective parties.

13. Section 362 of the Criminal Procedure Code(CPC) is clear on the scope of revision in criminal trial as follows:-“The High Court may call for and examine the record of any Criminal proceedings before any Subordinate Court for the purposes 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.”

14. Section 364 of the CPC provides that:-“(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 –(b)in the case of any other order other than an order of acquittal, alter or reverse the order.”

15. As was stated by the High Court of Malaysia in Public Prosecutor vs. Muhari bin Mohd Jani and Another [1996] 4 LRC 728 at 734, 735:“…..The object of revisionary powers of the High Court is to confer upon the High Court a kind of “paternal or supervisory jurisdiction” in order to correct or prevent a miscarriage of justice. In a revision the main question to be considered is whether substantial justice has been done or will be done and whether any order made by the lower court should be interfered with in the interest of justice…”

16. Section 333(2) of theCriminal Procedure Codestipulates that the time spent in custody must be taken into account. It was emphasized in the cases of Ahamad Abolfathi Mohammed & Another v Republic[2018] eKLR and in Bethwel Wilson Kibor vs. Republic , CA at Eldoret Cri. Appeal No. 78 of 2009 that the period must be taken into account before sentencing.

17. Kiarie Waweru Kiarie J. in the case of Joseph Maburu alias Ayub v Republic [2019] eKLR where the Court stated that:-“Sentencing is a judicial exercise. Once a judge or a judicial officer has pronounced a sentence, he/she becomes functus officio. If the sentence is illegal or inappropriate the only court which can address it is the appellate one.Black’s Law Dictionary Tenth (10th) Edition describes defines sentence as:The judgment that a court formally pronounces after finding a criminal defendant guilty; the punishment imposed on a criminal wrongdoer.Remitting a matter to the trial court which had become functus officio after sentencing flies in the face of the doctrine of functus officio. It amounts to asking the trial court to clothe itself with the jurisdiction of an appellate court. This is an illegality.”

18. In persuasive authority of Vincent Sila Jona & 87 Others v Kenya Prison Service & 2 Others [2021] eKLR in Petition 15 of 2020, Hon G.V Odunga J 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.See also; Musyeki Lemoya vs Republic (2014) eKLR.

19. This Court finds that it can /will review /revise the Trial Court’s computation of sentence to meet the mandatory requirement of Section 333(2) of the CPC.

20. It is not a review or revision of the increase, decrease or variation of sentence as to that extent the merits and demerits of the conviction and sentence have been canvassed and ventilated through an appeal which upheld both conviction and sentence. Therefore, to that extent this Court is functus officio and any further question(s) on these merits ought to be placed before the Court of Appeal.

21. Where this Court is asked to compute the sentence already meted out and this issue was not dealt with by the Trial Court nor raised by Appellant on appeal in this Court, then this Court in compliance with Article 50 (p) & (q) COK 2010 ought to revise/review the Trial Court’s computation of sentence in compliance with Section 333(2) CPC. This position is fortified by The Sentencing Policy Guidelines & Judiciary Criminal Procedure Bench Book (2018).

22. The Court gleaned through the Trial Court record both handwritten and typed proceedings and find that it is not sequential and/or complete. Although the charge sheet confirms that the Accused person was arraigned in Court on 8/9/2014, the complete record does not confirm or otherwise whether upon being granted bond he remained in custody or not and was released on bond. Therefore, this Court cannot come to an informed decision on the matter. The Applicant may pursue the claim in CoA upon proper records being furnished.

Dispositiona.The Chamber Summons filed on 19th January 2021 lacks merit and is hereby dismissed. The Applicant to exercise his right of appeal to Court of Appeal.It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT MACHAKOS THIS 14TH JUNE, 2022 (VIRTUAL CONFERENCE)M.W MUIGAIJUDGECOURT: The Court ICT Platform not working. Matter deferred to 15/06/2022M.W. MUIGAIJUDGE15/06/2022COURT: Ruling read over and explained to Parties/Counsel in Open Court Online.IN THE PRESENCE OF:ALEX MOSOTI KEBATI - APPLICANTMWONGERA - FOR THE RESPONDENTGEOFFREY - COURT ASSISTANT