[2022] KEHC 14060 (KLR)

Kimweli v Republic (Miscellaneous Criminal Application E080 of 2021) [2022] KEHC 14060 (KLR) (6 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14060 (KLR)

Republic of Kenya

In the High Court at Machakos

Miscellaneous Criminal Application E080 of 2021

MW Muigai, J

October 6, 2022

(Arising From Criminal Case No. 14 of 2011 & Misc. Criminal Appl. No. 24 of 2019)

Between

Muema Mwau Kimweli

Applicant

and

Republic

Respondent

Ruling

Background 1. The petitioner herein Muema Mwau Kimweli jointly with 2 others were charged with an offence of murder contrary to section 203 as read with section 204 of the Penal Code in the Machakos High Court Criminal Case No 14 of 2011. The particulars are that on unknown dates between 8th and January 14, 2011 at Kathyaka sub location in Kibwezi District within Makueni County jointly with others not before court murdered Philes Ndulu Kinuu.

2. The trial was conducted and the accused persons found guilty of the offence and they were convicted and sentenced to serve twenty five (25) years imprisonment by D K Kemei – J on January 16, 2019.

Chamber Summons Filed on 15th November, 2021 3. Aggrieved by the sentence, the applicant on July 13, 2020 filed in court a petition under certificate of urgency seeking the following prayers:-a.That the court declare that the sentence of 25 years which was imposed by High court on sentence to start from the period he was arrested and remanded pursuant to the provision of section 333(2).b.That this application is supported by the annexed sworn supporting affidavit of Muema Mwau Kimweli amongst other grounds to be adduced at the hearing hereof.

Supporting Affidavit Sworn on October 22, 2021 4. The applicant/petitioner swore an affidavit deposing as follows:-a.That he was arrested and charged with offence of murder contrary to section 203 as read with 204 of the Penal Code.b.That he was sentenced to serve 25 years imprisonment.c.That when trial court sentenced him to serve 25 years imprisonment it did not take into account the period he had spent in remand custody instead sentence took effect form the day it was pronounced.d.That he prays that this court order that the sentence of 25 years imprisonment to start from the time he was in remand.

Applicant’s Submissions 5. The applicant submitted that he was arrested while young aged 21 years and had a young family with a wife and a daughter. That his family wholly depended on him as he was the sole breadwinner. Following this case his wife left for their home since had no one to depend on any longer. That he be given another a second chance so that he can join his family. That this was his first offence hence he be treated as a first offender as he does not have any previous records. He also prays that this court revises sentence and relies on the report tendered by the probation officer and award him relief.

6. The applicant submitted that in prison he has undergone peer education, counselling, theological studies, technical training and alternative to violence projects in the correctional facilities. That he is now changed to a better person than he was before as he is now a pastor and a choirmaster and also a counselor. He has learned a lot and he is ready to preach the gospel of abiding by the law to the youth out there. He is now respectful to all persons irrespective of their age, sex, colour, origin and class. The prison has a report that he is of good discipline which is worth emulating by other inmates.

7. He finally submitted that he regretted the occurrence of this matter. That he is not blaming what his brother did but condemn such incident that left the victim’s family traumatized. He feels sorry for the ordeal. He has now repented to the almighty and it is due time to repent before the society. He is ashamed of the damage caused to the family of the deceased. He prays this court consider that he is now reformed first offender and hence remorseful.

8. In the case of Douglas Muthaura Ntoribi v Republic at Meru the court stated that;“A good working prison system is able to reform convict. There is no research, which leads to the conclusion that capital offenders cannot be reformed.

9. Also in the case of Thomas Patrick Gilbert Cholmondeley v Republic[2008] eKLR the court stated;“That part the deceased had trespassed on the farm and the learned DPP has acknowledged that the accused is a first offender.”

Respondents Submissions Dated February 9, 2022 10. It was submitted that the applicant was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code and he was sentenced to serve 25 years imprisonment by Hon Kemei, J.

11. Section 50 (2) of the Constitution states“every 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

12. The applicant should first exhaust his right of appeal to the Court of Appeal. The Court of Appeal will be in a position to scrutinize both the conviction and sentence of the High Court therefore this application is un-procedural and an abuse to the structure of courts as this court is functus officio.

13. The functus officio principal 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 [2014] eKLR where the Githinji, Karanja & Kiage JJ A 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 ago as the latter part of the 19th Century. In the Canadian case of Chandler v Alberta Association of Architects [1989] 2 S C R 848, Sopinka J traced the origins of the doctrines as follows (at p 860);

14. While this court is vested with adjudicative powers, once a court becomes functus officio, the only orders it can grant are review orders which are on exception to the functus officio doctrine. This was aptly summarized in the case if Jersey Evening Post Limited v Al Thani [2002] JLR 542 at 550 which was cited and applied by the Supreme Court in Raila Odinga & 2 others v Independent Electoral & Boundaries Commission & 3 others [2013] 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 eve when a decision has been communicated to the parties. Proceedings are only fully concluded, and the 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 alter its decision; any challenge to its ruling or adjudication must be taken to a higher court if that right is available.

15. The respondents prays that this application be dismissed in its entirety.

Determination 16. The court has perused the application and the court file of Court of Appeal where the appellants sought an appeal against the conviction and sentence of Hon D K Kemei J vide judgment delivered on January 26, 2019.

Section 333(2) of the Criminal Procedure Code 17. In this court the applicants seek that the sentence of 25 years imprisonment be computed in compliance of section 333(2) of Criminal Procedure Code by taking into account the period the applicants spent in custody during trial upto the date of sentencing.The Judiciary Sentencing Policy Guidelines at paragraph 7. 10 and 7. 11 are 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.

Review/Revision 18. The Criminal Procedure Code provides;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. In Vincent Sila Jona & 87others v Kenya Prison Service & 2others [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.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

20. The High Court is vested with appellate and supervisory jurisdiction over matters heard and determined by the Magistrates’ Court.

21. The instant case was heard and determined in the High Court as the court of 1st instance. The murder trial was conducted before the High Court. The trial court is of similar competent and concurrent jurisdiction as this court. Therefore, the court cannot revise or amend its judgment or ruling after pronouncement and delivery. The court cannot legally interfere with the judgment or ruling of the trial court of equal and similar jurisdiction as is the case herein. In short, this court lacks jurisdiction to entertain the question of conviction and resentencing, the computation of sentence provided by section 333(2) CPC in a matter heard and determined by a similar court and lacks appellate powers to hear and determine the appeal.

22. This court notes that the instant application was filed and placed before the trial court on April 29, 2019 and the trial court directed the notice of appeal to be endorsed and transmitted to the Court of Appeal. The orders are valid orders of the court and should be implemented.

23. Secondly, assuming that the court had jurisdiction, the original court record and proceedings are not availed so as to confirm the date of plea taking and thereafter how long the applicant was in custody before sentence. This court cannot proceed without the original record.

24. For these reasons, outlined above section 333(2) Criminal Procedure Codethough mandatory, is to applied on a case by case basis taking into account the jurisdiction of the court availability of the original record and confirmation that the applicant was/is in custody for a determinate period before sentencing.

Disposition1. This court is functus officio over its own decisions and the applicant should move to the Court of Appeal.2. The application is dismissed.

DELIVERED SIGNED & DATED IN OPEN COURT IN MACHAKOS THIS 6TH DAY OF OCTOBER, 2022 (VIRTUAL CONFERENCE).M.W. MUIGAIJUDGE