[2022] KEHC 11646 (KLR)

Lukendo v Republic (Miscellaneous Criminal Application 32 of 2020) [2022] KEHC 11646 (KLR) (10 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11646 (KLR)

Republic of Kenya

In the High Court at Bungoma

Miscellaneous Criminal Application 32 of 2020

SN Riechi, J

May 10, 2022

Between

Titus Mafura Lukendo (TML)

Applicant

and

Republic

Respondent

Ruling

1. In his notice of motion application dated 17th August 2020, the applicant seeks the following orders;1. The application be allowed and admitted under Articles 19,22,23, 27, 50(2)(p) and 165 of the Constitution 2010 as read together with Section 333(2) of the Criminal Procedure Code.2. The honourable court does consider the period of 2 years spent in remand.3. The court does exercise mercy and leniency and allow the sentence commence from the date of arrest or arraignment in court.

2. The application is supported by his affidavit sworn on even date where besides reiterating the prayers sought in the motion depones that he left young children who are in dire need of basic needs since his wife left immediately he was incarcerated. He depones that he is now aged 40 years and well rehabilitated through acquisition of spiritual skills that will guide him in nation building and wealth generation.

3. The parties were directed to file written submissions to the application. The applicant submits that this court has the requisite jurisdiction to take into account the provisions of Section 333(2) of the Criminal Procedure Code and order that the sentence does commence from the date of arrest. He relies on the authorities in Peter Kariuki Mathi Vs R (2019) eKLR, Ahamed Abolfath Muhamed & anor(2018)eKLR and Wycliffe Wangusi Mafura Vs R (2018)eKLR.

4. He submits that while in prison, he has engaged in various courses that have transformed his life, he has trained in computer applications and is assisting in typing and attained several certificates in theology.

5. The respondent on the other hand submits that while handling the appeal, the High Court considered the fact that the applicant had been held in remand during the trial. That further, the court lacks the jurisdiction to review the sentence of another court.

6. A brief background to this application is that the applicant together with others were charged with the offence of robbery with violence contrary to Section 295 as read with Section 296(2) of the Penal Code. After full trial, only the applicant and another were found guilty whereupon they were sentenced to suffer death. This sentence was commuted to life imprisonment by the president in the year 2016.

7. Upon appeal to the High Court sitting in Bungoma in Criminal Appeals 54 & 56 of 2015 (Consolidated), T. Cherere J. reduced the sentence to 14 years imprisonment to commence from 31st March, 2014 and dismissed the appeal on conviction.

8. After setting out the above the court is to determine whether the applicant has met the threshold for a review of his sentence. It is not in dispute that the applicant had earlier challenged his conviction and sentence. By judgement of this court delivered on 9th November, 2018 by Cherere J, the court held at paragraph 22 that;

9. Considering all the mitigating and aggravating factors, the period spent in pre-trial and post-trial custody and the cases I have cited, I re-sentence the petitioners to 14 years imprisonment commencing from the date of sentencing before the trial court which is 31/3/2015.

10. The court has considered the provisions upon which the application is predicated upon. These are Articles found in chapter 4 of our Constitution. Article 50(2)(p) specifically relates to administration of the least severe sentence if the penalty has changed during the pendency of trial. This Article is not applicable in the circumstances.

11. On the applicability of Section 333(2) of the Criminal Procedure Code, the proviso to that Section states;Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.

12. Upon perusing the judgement of this court (Cherere J), I note that the sentence was to run from the date of sentencing in the lower court. The question then is; can this court review the judgement of another judge of equal status? I think not. The constitution is exquisitely clear on the hierarchy of courts considering that sentencing, subject to the statutory penalties is a discretionary exercise and this court can only interfere with discretion if the applicant has demonstrated that a subordinate court took account of irrelevant factors or that the court failed to take cognizance of material factors.

13. In the instant matter, no material has been placed before this court demonstrating that the learned judge considered irrelevant factors or failed to take into account relevant facts. It is worth noting that the court reduced the sentence from death to 14 years. Section 296(2) of the Penal Code prescribes death as the sentence for robbery with violence. I find the court to have been lenient in reducing the sentence from the statute-provided to the 14 years now handed down.

14. In the circumstances, the court finds the application lacking in merit and is hereby dismissed.Orders accordingly.

DATED at BUNGOMA this 10th day of May, 2022S. N. RIECHIJUDGE