[2022] KEHC 136 (KLR)

Makau v Republic (Criminal Revision E007 of 2021) [2022] KEHC 136 (KLR) (15 February 2022) (Ruling)

Neutral citation number: [2022] KEHC 136 (KLR)

Republic of Kenya

In the High Court at Machakos

Criminal Revision E007 of 2021

MW Muigai, J

February 15, 2022

PM COURT CR CASE S.0. 27 OF 2014) (IN THE MATTER BEFORE HC MACHAKOS IN HCRA NO.31 OF 2017) IN THE MATTER PURSUANT TO ARTICLE 50 (2p & q) OF THE CONSTITUTION AND IN THE MATTER OF SECTION 333, 362 AND 364 OF THE OF THE CRIMINAL PROCEDURE CODE CAP 75 LAWS OF KENYA AND ALL THE ENABLING ARTICLES AND SECTIONS OF THE LAW

Between

Stephen Makau

Applicant

and

Republic

Respondent

Ruling

1. NOTICE OF MOTIONOn 28th January, 2021, the Applicant filed a Notice of Motion under Certificate of Urgency and sought the following orders:-1. THAT the Court has jurisdiction under section 346 of CPC to correct errors or omissions emanating from any of its decisions.2. That it is within the applicant’s constitutional right under Article 47 and 48 of the Constitution 2010 to fair administrative action and access to justice3. That this Court has original jurisdiction to hear any matter falling within its jurisdiction donated by Article 165(3)(a), Article159 (2) of CoK 2010.

2. The application is based on the initial and supplementary grounds as well as the averments in the Applicant’s supporting affidavit sworn on unknown date which the court has considered.SUPPORTING AFFIDAVIT

3. That the Court has powers under Section 361 & 362 of the CPC to look into the same and make appropriate orders; that the sentence imposed on the Applicant of 10 years imprisonment was harsh and excessive considering all the circumstances of the case.

4. The Court has inherent power to invoke jurisdictional powers to correspond with the recent jurisprudence from Court of Appeal in the case ofJared Koita Injiiri vs Republic [2019] eKLR.APPLICANT’S ORAL SUBMISSIONS

5. The Applicant’s prays for the following:a.That the period that he was in remand to be taken into account.b.That the Court variation and ask that the period he spent in remand be taken into account in computing the sentence.RESPONDENT’S SUBMISSIONS

6. The Court of Appeal in the case of Bernard Kimani Gacheru vs Republic [2002] eKLR restated that:“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 the 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 stated is shown to exist.”

7. Also in the case of Evan Kyalo – Republic [2020] eKLR Wakiaga – J stated thus:-“It is therefore clear that those powers are limited to what the statute and the Constitution of Kenya under article 165(6) and (7) provides. What this Court is called upon to determine is the legality, correctness or propriety of the sentence given by the court on the Applicant’s application or petition for resentencing. In order to exercise that power, the Court must be satisfied that the Trial Court acted upon wrong principles or failed to consider some fundamental principles.”

COURT RECORDPM COURT CR CASE S.0. 27 OF 2014 8. The Applicant was charged before the Principal Magistrate’s Court at Mavoko in Criminal Case No. 27 of 2014 for the offence of Attempted Defilement of a Child contrary to Section 9 (1) of the Sexual Offences Act No.3 of 2006.

9. The Police also preferred against the Applicant an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No.3 of 2006.

10. The Trial Magistrate convicted and sentenced the Appellant to serve 10 years imprisonment as per judgment delivered on 17th November 2015 and sentence meted out on the same date 17th November 2015. HIGH COURT JUDGMENT

11. Aggrieved by the conviction and sentence, the Applicant appealed before this Court in High Court Criminal Appeal No. 31 of 2017.

12. On 4th October, 2018 the Hon. Justice D.K Kemei dismissed the appeal and upheld both the conviction and sentence for the charge of attempted defilement.

13. The Applicant is now before this court seeking a reduction of the 10 years sentence upheld by Hon. Justice D.K Kemei.DETERMINATION

14. This Court is to determine the issue of revision of sentence under Article 50 (2) (p) & (q) of CoK 2010; Sections 333(2), 362 & 364 of Criminal Procedure Code.JURISDICTION OF THE COURT

15. Article 165 CoK 2010 provides in part the High Court jurisdiction;(3)Subject to clause (5), the High Court shall have—(a)unlimited original jurisdiction in criminal and civil matters;….(e)any other jurisdiction, original or appellate, conferred on it by legislation. ………..(6)The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.(7)For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.

16. The jurisdiction of the High Court is to hear and determine an appeal from the Trial Court Magistrate’s Court under Section 354 & 361 of the Criminal Procedure Code; which set out powers of the High Court and Second appeals on matters of law only in the Court of Appeal. The High Court vide Judgment delivered on 4th October 2018 by Hon Justice D. Kemei, dismissed the appeal, upheld both conviction and sentence, thereby the Applicant exhausted the appeal process before the High Court. The judgment of the High Court is of the similar, competent and concurrent jurisdiction as this Court. Therefore, the appeal if any ought to be lodged in the Court of Appeal.

17. With regard to the application of revision by the High Court the Applicant invoked under 362 & 364 of Criminal Procedure Code, which clothes this Court with jurisdiction only as regards records from the Subordinate Court.362. Power of High Court to call for records;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 court364. 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 & 358 and may enhance the sentence;...................................................................

18. In the instant case, the Appellant lodged an appeal in the High Court which must have called for lower court file as confirmed by the Court record and dismissed the appeal and upheld both conviction and sentence, a decision that binds this Court of similar jurisdiction.

19. The Appellant cannot have another bite at the cherry over the same subject-matter before this Court as it lacks appellate jurisdiction over the decision of the High Court.

20. Secondly, this Court notes that the sentence imposed of 10 years imprisonment is a mandatory minimum sentence under Section 9(1) of Sexual Offences Act.

21. This Court finds no legal basis to interfere with the sentence either that that sentence is manifestly excessive in the circumstances of the case, nor does this Court find that the Trial Court overlooked some material factor, or took into account some wrong material or acted on a wrong principle in light of the High Court judgment of 4th October 2018. DISPOSITION1. The Applicant’s application of 28th January 2021 is dismissed due to the valid, legal and regular High Court judgment of 4th October 2018. 2.The legal avenue for the Applicant is to lodge an appeal with/in the court of Appeal.

DELIVERED SIGNED & DATED IN OPEN COURT ON 15THFEBRUARY 2022. (VIRTUAL CONFERENCE)M.W. MUIGAIJUDGE