[2023] KEHC 25139 (KLR)

Lunani v Republic (Miscellaneous Criminal Application E011 of 2023) [2023] KEHC 25139 (KLR) (10 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25139 (KLR)

Republic of Kenya

In the High Court at Eldoret

Miscellaneous Criminal Application E011 of 2023

JRA Wananda, J

November 10, 2023

Between

Yohana Lunani

Applicant

and

Republic

Respondent

(Appeal against the decision vide Eldoret High Court Criminal Appeal No. 7 of 2017 Criminal Appeal 7 of 2017 )

Ruling

1. Before the Court for determination is an Application seeking review of sentence.

2. The Applicant was charged with two counts of the offence of robbery with violence contrary to Section 296(2) of the Penal Code in Eldoret Chief Magistrate’s Court Case No. 5427 of 2013. The trial Court convicted him on both counts and on 19/01/2017 sentenced him to death. Aggrieved by the conviction and sentence, he appealed against the decision vide Eldoret High Court Criminal Appeal No. 7 of 2017. The High Court (E. N. Maina J) by the Judgment delivered on 22/01/2020 upheld the conviction but on the sentence, substituted the death penalty with a prison term of 20 years for each count, to run concurrently from the date of the sentence imposed by the trial Court.

3. The Applicant then subsequently filed Eldoret High Court Criminal Petition No. 81 of 2020 seeking a further reduction of the sentence. The Petition was dismissed vide the Judgment delivered on 7/09/2021 by Omondi J (as she then was).

4. Undeterred, the Applicant has once again returned to this Court with this fresh Application brought vide the undated Notice of Motion filed on 6/02/2023. Again, he seeks review of the sentence. Quoted verbatim, the prayers made are as follows:i.That the Applicant is seeking for sentence review in accordance to Article 50(2)(p)(q) of the Constitution of Kenya.ii.That the Applicant is seeking to be placed under probation for the remaining part of the sentenceiii.That the Applicant is seeking for consideration of time spent in custody included as part of his sentence in accordance to Section 333(2) of the CPC.

5. He has cited Article 50(p)(q) of the Constitution of Kenya and also Section 333(2) of the Criminal Section Act. Needless to state, former provision is about fair trial (benefit of a lesser severe sentence if the prescribed sentence has since changed) and the latter requires the Court, at the time of sentencing, to take into account the time already spent in custody by a convict before the date of the sentence.

6. In his Supporting Affidavit, the Applicant has indeed exhibited copies of the Judgments already referred to above, as follows:i.Judgment of E. N. Maina J in Eldoret High Court Criminal Appeal No. 7 of 2017 dated 15/01/2020 and delivered on her behalf on 22/01/2020 by H. Omondi J (as she then was).ii.Judgment of H. Omondi J (as she then was) in Eldoret High Court Criminal Petition No. 81 of 2020 dated 23/08/2021 and delivered on 7/09/2021.

Applicant’s Submissions 7. The Applicant filed written Submissions on 13/02/2023. He stated that he is remorseful and repentant, he is now reformed as he has acquired various skills while in custody including vocational and theological skills for which he has been awarded certificates and diplomas, the prison Chaplain has ordained him as a disciplined person and he has changed many people through his testimony and preaching, due to the deteriorating status of his health a special diet has been prescribed for him which may not be fully complied with in prison, he underwent optical surgery and is at risk of having that problem recur due to the conditions in prison. He submitted further that he took plea on 26/11/2013, he was admitted to bond on 3/02/2014 and his surety was approved on 27/02/2014. He cited Section 333(2) of the Criminal Procedure Code and urged the Court to consider as part of his sentence, the 3 months period that he spent in remand.

Respondent’s Submissions 8. On her part, Prosecution Counsel Ms Okok, appearing for the State (Respondent) opted to make oral Submissions. She opposed the Application on the ground that the Applicant having previously filed a similar Application – Eldoret High Court Criminal Petition No. 81 of 2020 - which was heard and determined, the present Application, being similar, is a non-starter an should be dismissed.

Analysis & Determination 9. Upon considering the Application, Submissions and the entire record in general, I find the issues that arise for determination to be the following:i.Whether the present Application can be entertained considering that the Applicant’s previous Petition seeking review of the sentence was already heard and dismissed.ii.Whether the Applicant’s sentence should be reviewed.

10. I now proceed to answer the said issues.

i. Whether the present Application can be entertained considering that the Applicant’s previous Petition seeking review of the sentence was already heard and dismissed 11. As already stated, it is conceded by the Applicant that indeed he filed Eldoret High Court Criminal Petition No. 81 of 2020 in this very same Court by which he sought a reduction of the sentence. This was after his initial sentence of death had already been reduced in Eldoret High Court Criminal Appeal No. 7 of 2017 earlier filed by him.

12. I note that at paragraph 3 of her Judgment in Eldoret High Court Criminal Petition No. 81 of 2020, H. Omondi J (as she then was) made the following observation:“After appealing to the High Court in HCCRA No. 7 of 2017, the appeal was partially allowed on 21st January 2020, and the sentence was reduced to 20 years imprisonment, which was to run from the date of sentence.He has now petitioned this Court seeking a further reduction of the prison term in the spirit of the Supreme Court in Francis Karioko Muruatetu …….. saying that he spent over one year in custody before his trial begun ……………..”

13. At paragraph 11 of the Judgment, H. Omondi J then concluded as follows:“Further, that on appeal, the High Court, in the spirit of Muruatetu, exercised discretion and reduced his sentence by setting aside the death sentence and substituting it with 20 years term. I have perused the record and concur with Miss Okok. The Petitioner is simply trying to have two bites at the cherry and abusing the court process. The petition has no leg on which to stand, as all his arguments here were in fact factors considered by the court at the appeal. There is no wheel to re-invent and this petition is hereby dismissed.”

14. The filing of the present fresh Application can only mean that the Applicant either never understood the caution and findings made above by Omondi J (as she then was) or he has just chosen to continue abusing the Court process by perpetually bringing the same purported grievance over and over again despite the same having been fully heard and determined. He must now stop.

15. Having held as aforesaid, the second issue does not arise.

16. The upshot of the foregoing is that the Application is without merit as the issues it purports to raise were finally and conclusively determined by a Court of concurrent jurisdiction. If this Court was to interfere with the decision of H. Omondi J and even the earlier one by E. Maina J, which both dealt with the issue of sentence, such action would be tantamount to sitting on appeal on decisions of Courts of equal standing, a position that is untenable in law. By virtue of said Judgments therefore, this Court is functus officio.

Final Orders 17. In the premises, the Applicant’s undated Notice of Motion filed herein on 6/02/2023 is dismissed.

DELIVERED, DATED AND SIGNED AT ELDORET THIS 10TH DAY OF NOVEMBER 2023. ......................WANANDA J. R. ANUROJUDGE