[2023] KEHC 25348 (KLR)

Kirangi v Republic (Criminal Revision E206 of 2023) [2023] KEHC 25348 (KLR) (8 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25348 (KLR)

Republic of Kenya

In the High Court at Embu

Criminal Revision E206 of 2023

LM Njuguna, J

November 8, 2023

Between

Patrisio Njiru Kirangi

Applicant

and

Republic

Respondent

Ruling

1. The applicant has filed the notice of motion dated September 12, 2023 seeking review of the judgment of the court in Embu High Court Criminal Case Number 5 of 1997 where he was sentenced to death, which sentence was commuted to life imprisonment. The appellant seeks review in light of the decision in Julius Kitsao Manyeso v Republic, Malindi Court of Appeal Criminal Appeal No 12 of 2021 delivered on July 7, 2023. The orders sought are as follows:a.A declaration that the indeterminate nature of life sentences is unconstitutional and inconsistent and should be substituted with a lesser sentence;b.A declaration that the indeterminate life sentence is inconsistent with article 28 of the Constitution as it limits the applicant’s prospects of being released and should therefore be reviewed to an appropriate sentence; andc.Any other order as the honourable court may deem just in the circumstances of this application.

2. The brief background of the matter is that the applicant (together with others) was charged and convicted for the offence of murder contrary to sections 203 and 204 of the Penal Code in Embu High Court Criminal Case Number 5 of 1997. He was sentenced to death, which sentence was later commuted to life imprisonment. The following events followed:a.He appealed to the Court of Appeal Nyeri vide Criminal Appeal No 8 of 2000 and the appeal was dismissed.b.The applicant (together with another) filed a consolidated petition numbers Embu High Court Petition numbers 26 of 2019 and 1 of 2018, seeking resentencing in light of the Supreme Court’s decision in the case of Francis Karioko Muruatetu &another v Republic Petition No 15 & 16 of 2015. The petition was dismissed for want of jurisdiction.c.Once again, the applicant (together with another) filed a consolidated criminal revision vide Embu High Court Criminal Revision Numbers E020 of 2020 and E015 of 2020, seeking review of the sentence in Embu High Court Criminal Case number 5 of 1997. The revision was dismissed for want of jurisdiction.d.The applicant has now filed Embu High Court Criminal Revision Number E206 of 2023 seeking the abovementioned orders in light of the decision in Julius Kitsao Manyeso v Republic Malindi Court of Appeal Criminal Appeal No 12 of 2021. This is the application pending determination herein.

3. The respondent filed grounds of opposition dated September 9, 2023, opposing the said application on the grounds that, based on its previous pronouncements, this court lacks jurisdiction to determine the revision herein.

4. The revision herein was canvassed by way of written submissions and both parties complied.

5. The applicant, in his submissions, urged the court to consider his re-sentencing by defining the number of years as guided by the case of Julius Kitsao Manyeso v Republic, Malindi Court of Appeal Criminal Appeal No 12 of 2021. It was his case that by now he has learned to be a better citizen in prison given that he has been incarcerated for 27 years. That he has surely been adequately corrected through the corrections systems and is ready to begin a new life outside prison.

6. The respondent relied on the case of Jackson Maina Wangui & another v Republic, Criminal Case No 35 of 2012 (2014) eKLR and argued that it is not the role of the court to determine the number of years that should be referred to as life imprisonment. That the court in the case of Dennis Kiprotich Byegon v Republic (2022) eKLR declined to define the period referred to as life imprisonment and stated that this was the role of the legislature and not judiciary. It was their submission that given the series of events leading up to this application, this court cannot exercise its power to review under section 362 of the Criminal Procedure Code on the decision of a court of equal status as itself as the provision allows for supervisory jurisdiction only.

7. From the foregoing, the issue for determination is whether this court has the power to review the sentence meted out to the appellant.

8. The High Court’s supervisory jurisdiction in criminal cases is established under section 362 of the Criminal Procedure Code 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.”

9. In the Malaysian case of Public Prosecutor vs Muhari bin Mohd Jani andanother [1996] 4 LRC 728 at 734, 735 it was held:“The powers of the High Court in revision are amply provided under section 325 of the Criminal Procedure Code subject only to subsections (ii) and (iii) thereof. 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…If we have been entrusted with the responsibility of a wide discretion, we should be the last to attempt to fetter that discretion…This discretion, like all other judicial discretions ought, as far as practicable, to be left untrammeled and free, so as to be fairly exercised according to the exigencies of each case”.

10. The kind of supervisory jurisdiction to be applied under section 362 of the Criminal Procedure Code is limited to the sub-ordinate court’s findings, sentences, orders and regularity of any proceedings and can only be exercised by the High Court. This revision arises from a murder trial conducted at the High Court, which has original jurisdiction in that regard. There is no provision allowing or prohibiting the High Court from revising its own findings. However, in light of the Court of Appeal decision in the case of Julius Kitsao Manyeso v Republic (Criminal Appeal 12 of 2021) [2023] KECA 827 (KLR) (7 July 2023), the court left review of sentences to the trial court because sentencing is done discretionarily. Ideally, this decision put the High Court at liberty to review its findings where it sat as a court of original jurisdiction.

11. This court is bound by the doctrine of stare decisis and can therefore exercise its jurisdiction as provided for in the above cited Court of Appeal decision. I have noted my previous decision in this case delivered on March 17, 2021 where I dismissed Embu Criminal Revision Number E020 of 2020 for want of jurisdiction on the basis of the provisions of section 362 of the Criminal Procedure Code.

12. The guiding Court of Appeal decision was delivered on July 7, 2023, basically conferring jurisdiction to the High Court to review life imprisonment sentences, after I had made my pronouncements in Patricio Njiru Kirangi v Republic (2021) eKLR. In the case of Julius Kitsao Manyeso v Republic (Criminal Appeal 12 of 2021) [2023] KECA 827 (KLR) (7 July 2023) (supra) the court held thus:“….This fact notwithstanding, we are of the view that the reasoning in Francis Karioko Muruatetu & another v Republic [2017] eKLR equally applies to the imposition of a mandatory indeterminate life sentence, namely that such a sentence denies a convict facing life imprisonment the opportunity to be heard in mitigation when those facing lesser sentences are allowed to be heard in mitigation. This is an unjustifiable discrimination, unfair and repugnant to the principle of equality before the law under article 27 of the Constitution. In addition, an indeterminate life sentence is in our view also inhumane treatment and violates the right to dignity under article 28, and we are in this respect persuaded by the reasoning of the European Court of Human Rights in Vinter and others v The United Kingdom (Application Nos 66069/09, 130/10 and 3896/10) [2016] III ECHR 317 (9 July 2013) that an indeterminate life sentence without any prospect of release or a possibility of review is degrading and inhuman punishment, and that it is now a principle in international law that all prisoners, including those serving life sentences, be offered the possibility of rehabilitation and the prospect of release if that rehabilitation is achieved.”

13. In light of the foregoing, I have taken time to once again peruse all the files relating to these criminal proceedings and the outcomes at the various stages. I have also considered the mitigating factors as stated by the applicant both at trial and in this application. It is worth noting that the orders sought herein are still valid and relevant especially at this point in time when the Court of Appeal has donated jurisdiction to this court through precedent. I find that the indeterminate sentence of life imprisonment, having been found to be discriminatory, shall be reviewed by this court.

14. I am further guided by the Supreme Court’s decision in the case of Muruatetu & another v Republic; Katiba Institute & 4 others (Amicus Curiae) (Petition 15 & 16 of 2015) [2021] KESC 31 (Muruatetu 2). Therefore, the application has merit and is hereby allowed with orders as follows:a.The sentence of life imprisonment is hereby set aside and replaced with a sentence of 35 years imprisonment to run from the date of conviction.

15. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 8TH DAY OF NOVEMBER, 2023. L. NJUGUNAJUDGE…………………………………………for the Appellant………………………………………for the Respondent