[2022] KEHC 571 (KLR)

Kool v Director of Public Prosecutions (Criminal Petition E011 of 2021) [2022] KEHC 571 (KLR) (8 June 2022) (Judgment)

Neutral citation: [2022] KEHC 571 (KLR)

Republic of Kenya

In the High Court at Narok

Criminal Petition E011 of 2021

F Gikonyo, J

June 8, 2022

Between

Josphat Emmanuel Kool

Petitioner

and

Director of Public Prosecutions

Respondent

(Revision from Original Conviction/Sentence in Criminal Case No. 696 of 2010 of the Chief Magistrate’s Court at Narok and HCCRA 66 & 68 of 2011 at Nakuru)

Judgment

[1]Before me is an application dated 6/8/2021 which is premised upon the following grounds;i.That he has petitioned this court in accordance with the supreme court decision on mandatory nature of the sentences declared unconstitutional.ii.That he was convicted under Section 296(2) of the Penal Code where at the time of conviction death sentence in the offence of robbery with violence was mandatory.iii.That Article 50(2) of the Constitution of Kenya provide for a fair trial and hearing which was prejudiced by the nature of mandatory sentences.iv.That Article 27(1) of the Constitution of Kenya provides for equality to enjoy all rights and fundamental freedoms in the bill of rights which includes the rights to equal protection by the law and equal benefit of the law.v.That Article 23(1) and 165(b) gives the high court the powers, jurisdiction and discretion to hear and determine an application for redress.vi.That Article 59(c) provides that everyone has a right to be promoted and protected under observance of human rights in public and private institution.vii.That he is challenging both the sentence and conviction that were not provided as per the required law and therefore declared unconstitutional.

[2]On 23/3/2022, the petitioner indicated to this court that his appeal to this court and to the court of appeal were dismissed. He was sentenced to death but now on life sentence after it was commuted by the President. His co- accused was re-sentenced to 30 years.

[3]Mr. Karanja orally submitted that Muruatetu does not apply here. However, he stated that he is aware that a co-accused should receive similar sentence on the basis of uniformity of sentence. These cases ought to have been determined together.

[4]On 6/12/2021, this court directed that the petition shall be canvassed by way of written submissions. None of the parties herein filed written submissions.

Analysis and Determination [5]I have perused the trial court record, the judgment by the High Court at Nakuru, the two judgments in respect of an application by Musa Leshore Lemunke at Nakuru and Narok High Courts.

[6]In the trial court (CMCR 696 of 2010 at Narok) the two accused persons were condemned to death sentence.

[7]In Nakuru HCCRA NO. 66& 68 of 2011, the appeal by the two appellants; Josphat Emmanuel Kool & Musa Leshore Lemunke, was dismissed and the death sentence was upheld by Odero & Mulwa JJ. See Josphat Emmanuel Kool & another v Republic [2015] eKLR

[8]Musa Leshore Lemunke approached this Court for resentencing on the basis of the decisional law in the Supreme Court decision in the matter of Francis Karioko Muruatetu & another v Republic[2017] eKLR. He filed High Court Misc. Criminal Petition No. 83 of 2018 at Narok. Gikonyo J reduced the sentence to 30 years imprisonment to run from 12/9/2010 vide a judgment delivered on 25/02/2021. See Musa Leshore Lemunke v Republic[2021] eKLR

[9]Subsequently, Musa Leshore Lemunke filed an application before the High Court at Nakuru seeking resentencing on the basis of the Supreme court’s decision in the case of Francis Muruatetu & another v. Republic, No 15 and 16 of 2015. He filed High Court Misc. Criminal Application No. E002 of 2020 at Nakuru. Hon. Chemitei J. reduced the sentence to 20 years to run from 27/7/ 2010 vide judgment delivered on 3/3/2022. See Musa Leshore Lemunke v Republic [2022] eKLR.

[10]Of ominous flavour; from the judgment by Chemitei J. which was subsequent to resentencing by this court of concurrent jurisdiction, the applicant therein did not disclose to the court and/ or did not bring to the attention of the judge the earlier judgment of this court in respect of his resentencing. In light of this fact, the subsequent application on re-sentencing, could only have been stealth, and contrived to hoodwink and cause embarrassment to the court. It was absolute and deliberate abuse of court process for; it was not bona fide but filed for extraneous purposes, (Muchanga Investments Limited v Safaris unlimited (Africa) Limited and 2 others, and Beinosi v Wiyley [1973] SA 721 SCA); and was using two or more similar processes in respec of the exercise of the same right and same subject matter (African Continental Bank PLC v Damian Ikechukukwu Mwaigwe 82 Others SC 35 of 2001, Governors Balloon Safaris Limited V Attorney General & 2 Others {2014} eKLR)

[11]Such abuse of process of court is dangerous and illegal, and any outcome is festering waters from which no party should derive any benefit or on which a remedy may be sought or based.

[12]I may not express the loathe of such abuse of process of court, and measures to curb it, better than the Supreme Court of India in the case of D nyandeo Sabaji Nail and another v Mrs Pranya Prakash Khadekar and others (Petition Nos. 25331-33 of 2015, Dr D Y Chandrachud J inter alia: -“This Court must view with disfavour any attempt by a litigant to abuse the process. The sanctity of the judicial process will be seriously eroded if such attempts are not dealt with firmly. A litigant who takes liberties with the truth or with the procedures of the Court should be left in no doubt about the consequences to follow. Others should not venture along the same path in the hope or on a misplaced expectation of judicial leniency”… Exemplary costs are inevitable, and even necessary, in order to ensure that in litigation, as in the law which is practiced in our country, there is no premium on the truth.”

[13]The learned Judge continued;“Courts across the legal system - this Court not being an exception– are choked with litigation. Frivolous and groundless filings constitute a serious menace to the administration of justice. They consume time and clog the infrastructure. Productive resources which should be deployed in the handling of genuine causes are dissipated in attending to cases filed only to benefit from delay, by prolonging dead issues and pursuing worthless causes…”

[14]His Lordship then concluded;“…This tendency can be curbed only if courts across the system adopt an institutional approach which penalizes such behavior. Liberal access to justice does not mean access to chaos and indiscipline. A strong message must be conveyed that courts of justice will not be allowed to be disrupted by litigative strategies designed to profit from the delays of the law. Unless remedial action is taken by all courts here and now our society will breed a legal culture based on evasion instead of abidance. It is the duty of every court to firmly deal with such situations. The imposition of exemplary costs is a necessary instrument which has to be deployed to weed out, as well as to prevent the filing of frivolous cases. It is only then that the courts can set apart time to resolve genuine causes and answer the concerns of those who are in need of justice. Imposition of real time costs is also necessary to ensure that access to courts is available to citizens with genuine grievances. Otherwise, the doors would be shut to legitimate causes simply by the weight of undeserving cases which flood the system. Such a situation cannot be allowed to come to pass. Hence it is not merely a matter of discretion but a duty and obligation cast upon all courts to ensure that the legal system is not exploited by those who use the forms of the law to defeat or delay justice. We commend all courts to deal with frivolous filings in the same manner.”

[15]The petitioner cannot derive any benefit or base his quest on uniformity of sentence on an order obtained through total abuse of the court process and concealment of material fact. This petitioner seems to perpetuate the stealth acts of his co-accused.

[16]It is imperative now, following what I call ‘Muruatetu flood’, that courts must put in place institutional as well as system measures- physical and technology-based- that will detect ominous attempts by parties to abuse the court process in sentencing and nib them in the bud. The integrity of the judicial process must be protected in order to guarantee fair and just outcomes.

[17]For the foregoing reasons, this judgment should be brought to the attention of Chemitei J, the CRJ and the Chief Justice.

Merit of petition [18]The foregoing notwithstanding, below is what I observed in the case of his co-accused which applies mutatis mutandis in this case: -[26]In the case before me, the evidence show that the applicant with others in police uniforms armed with rifles and rungus stopped the complainant’s lorry. He stopped for he thought they were police officers only to be pulled down forcefully, assaulted and forced to drink some unknown liquid which made them unconscious. His turn boy was also given similar treatment. They gained consciousness much later to find the lorry and cargo they were carrying stolen. The manner the offence is committed is relevant consideration. In this case it was cruel. Security of the society from criminals especially those who have the audacity to dress like police officers to hoodwink the public is also quite relevant consideration in this case.[27]The offence is also serious; robbery with violence. And, the weapons used were also dangerous weapons; rifles and rungus.[28]In the circumstances of this case, deterrent sentence is most appropriate. I therefore sentence the applicant to 30 years’ imprisonment.Taking account of time spent in custody[29]At the time the offence was committed, robbery with violence was not bailable. The applicant remained in custody from the date of arrest. Section 333 (2) of the Criminal Procedure Code requires the sentencing court to take account of the period spent in custody. In re-sentencing, the court should be aware that, in some instances, time spent in custody may mean; (1) the period spent in remand during trial; and (2) the time actually served upon initial sentence. If a court does not clearly state the commencement date of the sentence upon re-sentencing, or states that the sentence commences on introduce an illegality. Care should, therefore, be taken by sentencing courts about the implication of section 333(2) of the CPC. I am aware that section 333(2) of the CPC does the date of judgment, a possibility of great absurdity and injustice looms. For instance, if a person was sentenced to serve 10 years and he has already served 5 years, if you reduce the sentence to 5 years with effect from the date of judgment, the person will actually serve more than he would have served under the original sentence given the right to remission. Such sentence will not only violate the right to fair trial but will not state how a court should take account of time spent in custody. But, it is my humble view that, the court should state categorically when the sentence commences in a manner that readily shows that it has given full effect to the requirements of section 333(2) of the CPC. It has been stated time without number, and I will state it again; merely stating that the court has taken account of time spent in custody is not sufficient. In that connection, the sentence herein will commence from 12th day of September, 2010 when the applicant was first charged in court because he remained in custody from thence to date. It is so ordered.

[19]As Musa Leshore Lemunke, the co-accused of the petitioner, in High Court Misc. Criminal Petition No. 83 of 2018 at Narok, (Gikonyo J), was resentenced on 25/02/2021 to 30 years’ imprisonment to run from 12/9/2010, for purpose of uniformity of sentence, I re-sentence the petitioner to 30 years’ imprisonment. The sentence to commence from 12. 9.2010.

[20]Right of appeal explained.

DATED, SIGNED AND DELIVERED AT NAROK THROUGH MICROSOFT TEAMS ONLINE APPLICATION, THIS 8TH DAY OF JUNE 2022F. GIKONYO MJUDGEIn the Presence of :The PetitionerMs. Torosi for Respondent