[2022] KEHC 10623 (KLR)

Kitonga v Republic (Miscellaneous Application E045 of 2021) [2022] KEHC 10623 (KLR) (14 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10623 (KLR)

Republic of Kenya

In the High Court at Machakos

Miscellaneous Application E045 of 2021

MW Muigai, J

June 14, 2022

Between

Anthony Mwatha Kitonga

Applicant

and

Republic

Respondent

Ruling

1. The applicant was charged with the offence of Defilement contrary to section 8 (1) as read together with section 8(4) of the Sexual Offences Act, No. 3 of 2006.

2. In the alternative he was charged with Committing and indecent act with a child contrary to section 11 (1) of the Sexual Offences Act, No 3 of 2006.

3. The matter was heard in Kithimani Law Courts before Senior Resident Magistrate, Hon GO Shikwe where the applicant was found guilty and sentenced to 4 years imprisonment.

Notice of Motion Application 4. The undated application was filed on November 3, 2021, the applicant sought the following orders;a.Review of his sentence pursuant to section 333(2) of the Criminal Procedure Code

5. The applicant filed an undated supporting affidavit and stated that he is currently serving a 4 year imprisonment term for the offence of defilement and the trial court did not take the time spent in custody into consideration before he was convicted on 18th of March 2021.

6. The respondent did not file a response to the application.

Appellants Submissions 7. The appellant filed submissions on March 2, 2022 in which he submitted on two grounds. He opined that he was in remand for 24 months which period was not factored into his sentence, said he was in custody from March 17, 2019 until 18th of March 2021 when he was convicted.

8. The applicant relied on the case of Ahamad Mohammed & Another vs Republic [2018] eKLR which provides;Ahamad Abolfathi Mohammed & Another v Republic(supra) 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…”

9. In Vincent Sila Jona & 87others vs Kenya Prison Service & 2others [2021] eKLR in Petition 15 of 2020, Hon GV Odunga J held;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. and Musyeki Lemoya vs Republic (2014) e KLR.

10. On the second ground, he prayed for a non-custodial sentence on the basis that he had been rehabilitated while in custody in line with the Kenya Prison’s Service Tagline of “Kurekebisha na Haki” and was thus ready to be integrated back to the society. Reliance was placed on the case of Musa Saddy Hussein vs Director of Public Prosecutions (2020) eKLR.

Respondents Submissions 11. The respondent filed submissions dated February 21, 2022 in which counsel submitted that the applicant had been in custody for 773 days, that is 2 years, 1month and 11 days. He stated that the applicant was arrested on 17th of March 2018, took plea on March 19, 2019 and was convicted in April 28, 2021 to 4 year’s imprisonment. He relied on the case of R vs Scott (2005) NSWCCA 152 that discusses the purpose of sentencing and Benard Kimani Gacheru v Republic (2002) on the discretion of the court when dealing with sentences as follows;It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already states is shown to exist.”

12. While relying on section 8(1) and (3) of the Sexual Offences Act, DPP asked the court to enhance the sentence to 15 years as the Trial Court was too lenient.

Determination 13. The court has considered the application, the submissions of both parties and the trial court record and the issue for determination is whether the sentence of the trial court should be disturbed.

Computation of Sentence 14. The charge sheet indicates that the Applicant was arrested on 17th of March 2018, taken to court on March 19, 2019 and has been in custody up until April 28, 2021when he was convicted.

15. The trial court during sentencing stated as follows;“Taking all factors into consideration and also bearing in mind the two years already spent in remand I am of the view that a further custodial sentence of four (4) years is appropriate herein.The offender to serve a custodial term of four years imprisonment”

16. Therefore, with regard to the application of section 333(2) CPC to computation of sentence under section 8(1) and 8(3) of Sexual offences Act and alternative section 11 of Sexual Offences Act, the Court considers the following;-

17. The trial court expressly considered and acknowledged the 2 years in custody the Applicant had been in custody and granted imprisonment of 4 years. This court finds that the trial court factored the 2 years the applicant was in custody before conviction and sentence and complied with mandatory requirements of section 333(2) CPC.

18. The notice of motion of 3/11/2021 for review of sentence is hereby dismissed.

Appeal 19. I have also noted that the applicant was aggrieved by the decision of the trial court decision lodged and filed petition of appeal on 18th of June 2021 which is yet to be heard and determined. There is no indication on the position of the appeal and whether the application has withdrawn the appeal or the appeal is pending. Further the appeal was not served to the DPP/pros/respondent to respond. Finally, the written submissions by the applicant and respondent referred to computation of sentence and enhancement of sentence and not the appeal. This court was not therefore appropriately moved to address the appeal although it is on record.

20. The appeal is against the sentence and conviction in which the appellant seeks to have the sentence quashed and he be set free unconditionally or is placed on probation or any other non -custodial sentence. The current application and the appeal challenge the sentence that was given by the trial court, evident from the pleadings.

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.

21. As discussed in the case of Republic v Paul Kihara Kariuki, Attorney General & 2 others Ex parte Law Society of Kenya [2020] eKLR where the court in analyzing the principle of sub- judice stated that;“With a large number of pending cases, the Judiciary is overburdened and faces a stark lack of resources. In a situation like this, when two suits arising out of the same issues between the same parties are brought before the courts, there is bound to be wastage of resources and frivolous litigation. In order to correct this redundancy, there exists the doctrine of sub judice which is captured in section 6 of the Civil Procedure Act……………….Both suits challenge the same decision. The prayers sought in both suits are the same. Since both the suits cite similar issues, the decision of the first suit should be binding on those issues and it need not be tried again. If the plea in the first suit succeeds, then it will render the second case res judicata.………….In order to check this very problem, there exists the concept of sub judice which in Latin means “under Judgment.” It denotes that a matter is being considered by a court or judge. The concept of sub judice that where an issue is pending in a court of law for adjudication between the same parties, any other court is barred from trying that issue so long as the first suit goes on. In such a situation, order is passed by the subsequent court to stay the proceeding and such order can be made at any stage.”

21. The applicant filed appeal that remained on record seemingly abandoned and pursued the review which this court has considered its merits and dismissed. This court cannot simultaneously hear and determine both appeal and review yet the submissions are/were on review only. To challenge a pending sentence or order must be through an appeal not review. This court cannot hear and determine both review and appeal at the serve time.

Enhancement of Sentence 22. The DPP/Prosecution submitted that the court ought/should enhance the sentence from 4 years imprisonment meted out by the trial court 15 years as mandatory minimum sentence under section 8(1) & 8(3) Sexual Offences Act as follows;A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.

23. The court gleaned through the evidence on record by the prosecution and defense and found the trial court convicted the applicant on the basis of single witness evidence under section 124 of Evidence Act and the trial court observed of PW 1 and reasons for relying on her evidence was that-all questions were answered succinctly and in great detail without hesitation. The complainant did not prevaricate nor waver in her testimony…..The complainant informed the court;‘I had sex with a boy in school I did not get pregnant. The sex I had with the boy was 2 days prior which means it was a Friday and then the accused defiled me on Sunday….’

23. On 19/1/2019, from the record, the trial court ordered DNA test to be carried out to the accused person/applicant, the complainant and the resultant baby born out of coitus by complainant and the boy from school and defilement by the applicant. Strangely, the trial court confirmed receipt of the DNA result and the applicant was given the results but the content was not disclosed as per court proceedings nor is the report in the court file.

24. These facts on record do not favour enhancement of sentence to 15 years imprisonment.

25. With regard to enforcement of mandatory minimum sentence as prescribed by our laws, there is emerging jurisprudence on application of minimum sentences as follows;

26. The binding precedent of the Apex Court; Supreme Court in Francis Karioko Muruatetu &another vs Republic [2017]eKLR ( hereinafter referred to Muruatetu 1); relying on the Privy Council case of Spence vs The Queen where Byron CJ held;In order to be exercised in a rational and non-arbitrary manner, the sentencing discretion should be guided by legislative or judicially prescribed principles and standards, and should be subject to effective judicial review ,all with a view to ensuring that the death penalty is imposed in only the most exceptional and appropriate circumstances. There should be a requirement for individualized sentencing in implementing death penalty.The Supreme Court declared death penalty un-constitutional.

23. In Francis Karioko Muruatetu vs Republic; Katiba Institute & 5others (amicus Curiae) [2021] e KLR (hereinafter Muruatetu 2) The Supreme Court clarified;The decision of Muruatetu and these guidelines apply only in respect to sentences of murder under section 203 & 204 of the Penal Code……

23. Recently of persuasive authority, the High Court in Petition No.E 017 of 2021 Hon. G. V. Odunga J in considering the import of minimum mandatory sentences in Sexual Offences Act No 3 of 2006 held;Taking cue from the decision in Francis Karioko Muruatetu & Another vs Republic[2017] eKLR (Muruatetu 1) the court held that;those who were convicted of sexual offences and whose sentences were passed on the basis that trial courts had [have] no discretion to impose the said mandatory minimum sentence are at liberty to petition the High Court for orders of resentencing in appropriate cases.

23. The jury is still out on application of mandatory minimum sentences; whereas case-law fortifies discretion by the trial court to mete out appropriate sentences based on specific circumstances of the case including applying the minimum mandatory sentence, the legislative enactment and policy guidelines are not in place yet as prescribed by the Supreme Court in Muruatetu 1.

24. From the above case-law and the facts of this case as recorded and considered by the trial court, the trial court exercised discretion to the circumstances of the case taking into account the 2 years the applicant was in custody sentenced the accused person to 4 years imprisonment. I find no legal basis to enhance the sentence to 15 years unless on appeal under section 364 ofCPC.

Dispositiona.The notice of motion application filed on November 3, 2021 lacks merit and is hereby dismissed.b.The trial court considered the 2 years the applicant was in custody pending determination and sentence as confirmed the trial court record.It is so ordered.

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 15/06/2022. M.W. MUIGAIJUDGE15/06/2022COURT: Ruling read over and explained to Parties/Counsel in Open Court online with Parties present.IN THE PRESENCE OF;ANTHONY MWATHA KITONGA - APPLICANTMWONGERA - FOR RESPONDENTGEOFFREY - COURT ASSISTANT