[2023] KEHC 25132 (KLR)

Mbaka v Republic (Criminal Petition 05 of 2022) [2023] KEHC 25132 (KLR) (9 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25132 (KLR)

Republic of Kenya

In the High Court at Kisii

Criminal Petition 05 of 2022

TA Odera, J

November 9, 2023

Between

Dominic Nyakundi Mbaka

Petitioner

and

Republic

Respondent

Ruling

1. By a Petition filed on 16. 6.2022 under Section 333(2) of the Criminal Procedure Code, the Petitioner sought for leniency on the sentence of 10 years imposed upon him by a Judgment delivered on 8. 12. 2018 by Hon. Lady Justice R. Ougo.

2. The grounds of the Petition are that the Petitioner was arrested, arraigned in Court tried and convicted of the charge of murder contrary to section 203 as read with section 204 of the Penal Code. He was sentenced to serve 10 years’ imprisonment. He stated that he was remorseful for his involvement in the offence. He further stated that he was transformed and rehabilitated in general character and spiritually ready to integrate with family members and the society for better development of the nation. He stated that he suffered from epilepsy which ought to be taken care of by his family. He urged the Court to take into account the time already served in custody before the sentence was imposed in line with Section 333(2) of the Criminal Procedure Code. He cited the case of Bethwel Wilson Kibor v Republic, Court of Appeal Criminal Case No. 78 of 2009 where the Court of Appeal reduced the sentence by the time served in custody. He also cited the case of George Marwa Chacha v Republic, Petition No. 42 of 2019, Criminal Case No. 43 of 2005 at Kisii High Court where the Court sentenced the accused person to serve 25 years imprisonment which sentence was to run from the period spent in custody and the remand period. He orally urged the Court to consider the period he had spent in custody and prayed for resentencing.

3. The Respondent opposed the Application. Mr. Ochengo, State Counsel, submitted that the Petitioner was applying for review of a sentence by a court of concurrent jurisdiction.

Determination 4. I have considered the Petition and the Parties’ Submissions. To my mind, the Petitioner is seeking for the substantive order that the sentence imposed include the period he spent in custody; and that the Court proceeds to resentence him on that account.

Revision 5. Section 362 of the Criminal Procedure Code provides as follows :-The High Court may call for and examine the record of any criminal proceedings before a 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 court. Emphasis mine

6. Section 364 of the Criminal Procedure Code provides thus: -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;(b)in the case of any other order other than an order of acquittal, alter or reverse the order.(c)in proceedings under section 203 or 296[2] of the Penal Code, the Prevention of Terrorism Act, the Narcotic Drugs and Psychotropic Substances [Control] Act, the Prevention of Organized Crimes Act, the Proceeds of Crime and Anti-Money Laundering Act, the Sexual Offences Act and the Counter-Trafficking in Persons Act, where the subordinate court has granted bail to an accused person, and the Director of Public Prosecutions has indicated his intention to apply for review of the order of the court, the order of the subordinate court may be stayed for a period not exceeding fourteen days pending the filing of the application for review.(2)No order under this section shall be made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by an advocate – in his own defence’Provided that this subsection shall not apply to an order made where a subordinate court has failed to pass a sentence which it was required to pass under the written law creating the offence concerned. Emphasis mine

7. In the case of Reuben Mwangi Nguri v Republic [2021] eKLR, the Court went into great detail in defining and delineating the constructs of revision. The Court cited the case of Kiwala v Uganda 1967 EA 758 where the Court held “Once a case has been revised by the High Court becomes functus officio and that the revision is final unless there is an appeal to the court of appeal.”

8. In the case of Uganda v Polasi as cited in the case of Reuben Mwangi Nguri v Republic (Supra) held:“The case has come to this court’s notice in the exercise of its functions. The accused, it would seem, was unaware of the illegality of the sentence…. Once this state of affairs has come to the notice of the High Court, what must it do when it is enjoined to exercise general powers of supervisions and control over the magistrates’ courts, coupled with the specific powers of revision, under….the Criminal Procedure Code? The court is clothed with authority to correct errors…. Here the accused is sentenced to undergo imprisonment for seven years, a sentence which exceeds the legal limits by five years and, accordingly, there’s a gross illegality. In these circumstances, the clear duty of this court, notwithstanding the fact that the accused has abandoned his appeal, is to invoke….the Criminal Procedure Code and cure the illegality. I would hold in the circumstances of this case, even if this court is functus officio, it has jurisdiction under its revisional powers to correct the formidable error of the trial magistrate which has already occasioned an injustice.” Emphasis mine

9. The Court further cited the case of REX v Compensation Appeal Tribunal 1952 1KB 338-347 where the English Court of Appeal held as follows: -“The court of Kings Bench has an inherent jurisdiction to control all inferior tribunals, not in an appellate capacity but in a supervisory capacity. This control tends not only to seeking that the inferior tribunals keep within their jurisdiction, but also to seeking that they observe the law….” Emphasis mine

10. It then follows that I cannot exercise supervisory jurisdiction over a Court with concurrent jurisdiction. While I appreciate the Petitioner’s right under section 333(2) of the Criminal Procedure Code, I cannot revise the orders of a Court with concurrent jurisdiction. (See Antony Nyaga Njagi v Republic [2020] eKLR; Elishipha Muthoni v Republic [2022] eKLR; and Stephen Kathuri Kimotho & 2others v Republic [2021] eKLR

11. Indeed, Article 165 (3) (6) of the Constitution of Kenya provides that this Court has supervisory jurisdiction over subordinate courts and any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court. The Applicant’s prayers would be better suited to be placed before the Court of Appeal.

12. I have also noted that before petitioner was sentenced the Hon. Judge considered that he was in custody for 5 years before he was released on bond.

13. The remand period was considered as required by Section 333(2) of the Criminal Procedure Act. I therefore find no merit in the petition and I decline to review the sentence as passed by a court of concurrent Jurisdiction.

DATED, DELIVERED AND SIGNED AT KISII THIS 9TH DAY OF NOVEMBER 2023. T.A ODERAJUDGEIn the presence of:Mr. Ochengo for the StateAccused Person/Applicant in Person