[2022] KEHC 3375 (KLR)

Mbuvi v Republic (Criminal Petition E015 of 2020) [2022] KEHC 3375 (KLR) (4 May 2022) (Ruling)

Neutral citation: [2022] KEHC 3375 (KLR)

Republic of Kenya

In the High Court at Machakos

Criminal Petition E015 of 2020

MW Muigai, J

May 4, 2022

Between

Paul Makau Mbuvi

Applicant

and

Republic

Respondent

Ruling

Background 1. The applicant was charged before Yatta Law Courts in Criminal Case No. 7 of 2009 with the offence of defilement contrary to section 8(1) as read withsection 8(2) of the Sexual Offences Act No. 3 of 2006. The Trial Magistrate sentenced the Applicant to life imprisonment.

2. Aggrieved by thetrial court conviction and sentence, he appealed before Machakos High Court Criminal Appeal No.108 of 2010. The High Court upheld the conviction and sentence to life imprisonment.

Chamber Summons 3. The applicant filed Certificate of Urgency filed on November 11, 2020Chamber Summons filed on the same date before thiscourt, the applicant sought to be resentenced pursuant to the following cases;a.Court of Appeal decision of Evans Wanyonyi v Republic (2019) eKLR, Criminal Appeal No 318 of 2018 which was based on the;b.Supreme Court decision of Francis Karioko Muruatetu &another v Republic [2015] eKLR and;c.Court of Appeal decisions of Jared Koita Injiri v RepublicKisumu Cr. Appeal No. 93 of 2014;d.Christopher Ochieng v Republic (2018) eKLR; where the sentence of 20 years imprisonment was set aside and substituted with 10 years’ imprisonment.

4. According to the applicant, the Supreme Court declaredsection 296(2) and 203 as read with section 204 of the Penal Code to be unconstitutional for violating the provisions of the Constitution, 2010. According to the applicant, the Supreme Court decision applies to sentences that provide for a mandatory sentence.

5. The applicant has urged the court to consider the time he spent in custody pursuant to section 333(2) of the Criminal Procedure Code as sufficient and acquit him.

Applicant’s Mitigation Submissions 6. The applicant submitted that his mitigation submission seek his resentencing pursuant to the declaration made in the Court of Appeal decisions of Joseph Kaberia Kahinga & 11others v Attorney General(2016) eKLR Petition No 618 of 2010 and Evans Wanjala Wanyonyi v Republic[2019]eKLR, Criminal Appeal No 312 of 2018.

7. According to the applicant, he is remorseful and regrets his action. He submitted that he was sorry to his family and his social circles. He submitted that he was a first offender and has never been punished in prison for the last 12 years he has been incarcerated. According to the applicant, there are no aggravating circumstances such as loss of life, maiming or injury in the commission of the offence to warrant his continued stay in prison According to theapplicant, he has spent 12 years in prison.

8. Before his arrest he was not involved in any crime or misconduct, he was arrested at 19 years of age and has been in prison for 12 years which is sufficient punishment so that he can go back and have a family of his own.

9. He has urged the court to consider that he has been rehabilitated while in prison, he trained and acquired skills for personal development as well as to help the community. He submitted that through the collaboration of Mama Africa Youth Centre, Sarakasi Trust and the Kamiti Maximum Prison, he was trained in Acrobatic/physical Training Exercise Program, Skills and Talent Empowerment Program, Physio-therapy Program and Self-awareness Program.

10. According to the applicant, the skills he acquired in prison will enable him to positively impact on the youths in the society and since he has been trained in bible teachings, he will train the society on how to resolve violence disputes.

11. With regard to resentencing, reliance was placed on the case of Yawa Nyale vs Republic [2018] eKLR on resentencing on sexual offences applying article 27 CoK2010 & Muruatetu case & the case of Evans Wanjala Wanyonyi vs Republic [2019]eKLR where the Court of Appeal held that:“25. In this appeal, guided by the merits of the Supreme Court decision in Francis Karioko Muruatetu & another v Republic (supra) and persuaded by the decisions of this Court in Christopher Ochieng v R (supra) and Jared Koita Injiri v R, Kisumu Criminal Appeal No 93 of 2014 in relation to sentencing, we are convinced and satisfied that the enhanced mandatory 20 year term of imprisonment meted upon the appellant by the learned judge cannot stand. We are inclined to intervene. We hereby set aside the 20 year term of imprisonment meted upon the appellant. We substitute the 20 year term of imprisonment with one of imprisonment for a term of ten (10) years with effect from the date of sentence by the trial court on September 18, 2015. ”

12. Regarding sentencing, reliance was placed on the case of Dismus Wafula Kilwake v Republic (2019), the Court of Appeal took the view that holding that mandatory death sentence is unconstitutional should be applicable to sexual offences.

13. The applicant referred to the Judiciary Criminal Procedure Bench Book 2018 at Pg 114 that sets out the process of Sentencing & the Judiciary Sentencing Policy Guidelines on the mitigating and/or aggravating circumstances in sentencing and that the Sentencing policy is to promote restorative justice and values of rehabilitation.

14. The Appellant reinforced his argument be reference to High Court of South Africa lady Justice Thokozile Matilda Masipa in the case of Oscar Pistorious (no citation was provided to enable this court read it online) on the right balance to applied by the court in sentencing; and Misc. Cr.No.45 of 2018 before the Nakuru High Court (citation not complete) on application of the Judiciary Sentencing Policy.

15. The applicant urged this court to consider the effect of section 333(2) of the Criminal Procedure Code(CPC) that requires time spent in custody be considered as held in Titus Ngamau Musila alias KatituCriminal Case No 78 of 2014 that dealt with section 46 of Prisons Act.

Prosecution Submissions 16. The DPP/Prosecution submitted that the Applicant was tried and convicted for the offence undersection 8 & 8 (2) of Sexual Offences Act.

17. On behalf of the prosecution, the prosecution counsel, Martin Mwongera submitted that pursuant toarticle 50(2) & (q) of the Constitution, if convicted, to appeal to, or apply for review by, a higher Court as prescribed by law.

18. The Applicant should first exhaust his right of appeal to the Court of Appeal which will be in a position to scrutinize the conviction and sentence of this Court. The Prosecution submitted that the application is not procedural and an abuse of the courts structure.

19. According to the Prosecution, this court is functus officio since it is barred from proceeding with the application as it heard and substantively adjudicated the appeal. Reliance was placed on Telkom Kenya Limited v John Ochanda (Suing on his own behalf and on behalf of 996 former employees of Telkom Kenya Ltd[2014] eKLR Githinji, Karanja & Kiage JJA observed as follows;Functus officio is an enduring principle of law that prevents the reopening of a matter before a court that rendered the final decision thereon. It is a doctrine that has been recognized in the Common Law tradition from as long as the latter part of the 19th Century.

20. In Jersey Evening Post Limited v Al Thani[2002] JLR at 542 at 550 cited in Raila Odinga & 2others v IEBC & 3others[2013] eKLR to submit that this court is functus officio.The respondent urged this court based on the law to dismiss the Chamber Summons in its entirety.

Determination 21. I have considered the submissions and authorities relied upon parties in the matter.

22. The question for determination is whether this court has the requisite jurisdiction to resentence the applicant pursuant to the Court of Appeal case No 312 of 2018; Evans Wanjala Wanyonyi v Republic [2019]eKLR.

Whether This Court Is Functus Officio 23. The applicant has urged this court to consider the period of 12 years he has spent in custody and acquit him but the Prosecution Counsel asserted that this court isfunctus officio since it heard and substantively adjudicated in the Machakos High Court Criminal Appeal No. 108 of 2010 where the Trial Court sentence of imprisonment for life was upheld.

24. The Prosecution cited the case of Raila Odinga & 2 others v Independent Electoral & Boundaries Commission & 3 others[2013]eKLR where the Supreme Court stated;“a court is functus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded and the court functus when its judgement or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling or adjudication must be taken to a higher court of that right is available.”

25. Sentencing is a discretion of the trial court and this court would only address the sentence issue if the sentence is illegal or inappropriate as held by Kiarie Waweru Kiarie J. in the case ofJoseph Maburu alias Ayub v Republic[2019] eKLR where the Learned Judge stated that:-“Sentencing is a judicial exercise. Once a judge or a judicial officer has pronounced a sentence, he/she becomes functus officio. If the sentence is illegal or inappropriate the only court which can address it is the appellate one. The Black’s Law DictionaryTenth (10th) Edition describes defines sentence as:The judgment that a court formally pronounces after finding a criminal defendant guilty; the punishment imposed on a criminal wrongdoer.Remitting a matter to the trial court which had become functus officio after sentencing flies in the face of the doctrine of functus officio. It amounts to asking the trial court to clothe itself with the jurisdiction of an appellate court. This is an illegality.”

26. This Court in Machakos Criminal Appeal No. 108 2010 upheld the trial court sentence. the appeal was before a court of similar, equal, competent and concurrent jurisdiction to this court. Thiscourt is functus officio.

Resentencing 27. In his submissions; theapplicant submitted that he acquired training and skills while in prison to enable him help the youth in the society, although the certificates have not been supplied to this court. According to the applicant, the period spent in the prison was sufficient to rehabilitate him. He submitted that he has never had a single discipline case in the prison. He pleaded for a second chance in life.

28. In the 2016 Judiciary of Kenya Sentencing Policy Guidelines lists the objectives of sentencing at page 15, paragraph 4. 1 inter alia that the objective of sentencing was Deterrence: To deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences.

29. In Muruatetu Case(supra) the Supreme Court relied on the case of Vinter and others vs. the United Kingdom (Applications nos. 66069/09, 130/10 and 3896/10) in which the court held that:“111. It is axiomatic that a prisoner cannot be detained unless there are legitimate penological grounds for that detention. As was recognized by the Court of Appeal in Bieber and the Chamber in its judgment in the present case, these grounds will include punishment, deterrence, public protection and rehabilitation. Many of these grounds will be present at the time when a life sentence is imposed. However, the balance between these justifications for detention is not necessarily static and may shift in the course of the sentence. What may be the primary justification for detention at the start of the sentence may not be so after a lengthy period into the service of the sentence. It is only by carrying out a review of the justification for continued detention at an appropriate point in the sentence that these factors or shifts can be properly evaluated..”

30. It is possible that the 12 year period spent by theapplicant in prison may have made it possible for him to be rehabilitated into a person that would impact the society positively. Theapplicant has submitted extensively on the new person that he is now and has requested this court to consider that he is changed person ready to move back to the society.

31. Thecourt notes that no Report from a Probation Officer or the Prison has been filed to enlighten the court on the applicant’s behavior but the lack of the report does not discount the applicants submissions that he has changed his behavior. The prosecution issue is only contending that this court isfunctus officio.

32. Thecourt’s has considered the merits of the chamber summons on this court’s jurisdiction and the resentencing law and policy, particularly applicability of the decision ofEvans Wanjala Wanyonyi v Republic [2019] eKLR which the applicant has largely relied on, was decided June 6, 2019 before the Supreme Court in Francis Karioko Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae)[2021] eKLR issued directives on offences that attract mandatory sentences.

33. On July 6, 2021, the Supreme Court in Francis Karioko Muruatetu & another vs. Republic; Katiba Institute & 5 others (Amicus Curiae)[2021] eKLR ( herein referred to as Muruatetu 2) clarified that Muruatetu case [2015] eKLR (supra) and the Judiciary Sentencing Policy Guidelines apply only applicable to and in respect to sentences of murder under sections 203 and 204 of the Penal Code. The Supreme Court stated at paragraph 18 that:-“(18)Having considered all the foregoing, to obviate further delay and avoid confusion, we now issue these guidelines to assist the courts below us as follows:i.The decision of Muruatetu and these guidelines apply only in respect to sentences of murder undersections 203 and 204 of the Penal Code;..”

34. It follows therefore that the Applicant charged with offence of defilement under the Sexual Offences Act will not benefit from the guidelines in Muruatetu 2 case.

Section 333(2) Of The Criminal Procedure Code 35. In the reliefs sought by the applicant, this court is urged to apply the provisions of section 333(2) of theCPCand the time he had served in remand be factored in.

36. The Judiciary Sentencing Policy Guidelines at paragraph 7. 10 and 7. 11is to the effect that the proviso tosection 333 (2) of theCriminal Procedure Codeobligates the court to consider the time already served in custody if the convicted person had been in custody during the trial. Similarly, the Appeal No 108 of 2010 was not availed to this court

37. This court despite several correspondence from Deputy Registrar Machakos High Court; dated 17/2/2021,25/10/2021& 4/2/2021 to Kithimani Law Courts for the Original Trial Court ‘s File proceedings and judgment to be availed to this court, the original court file was not availed. The allegations with regard to resentencing and/or computation of sentence under 333(2) CPCcannot be verified and considered at this stage without the original Court file.

38. The court notes with concern, the applicant claimed in his application that he was tried and convicted in Yatta Court yet the court file was in Kithimani Law Courts as per correspondence. Due to absence of the Original Court file and evidence of the appeal by the High Court, the court cannot apply section 333(2) CPC at this stage.

39. Except as per the DPP/Prosecution records and submissions, thiscourt cannot verify and/or confirm whether the Trial Court or this court took or did not take into account the period the Applicant spent in custody. A copy of the judgment both from the Trial Court and the High Court have not been attached to enable this Court address itself on the issue.

40. Thecourt is functus officio. Theapplicant recourse is before the Court of Appeal. Article 50 (2) (q) of the Constitution is clear that the applicant would seek redress before a higher court, in this case the Court of Appeal.

Disposition1. In the upshot, this court lacks requisite jurisdiction to review the sentence as this court heard and determined Appeal 108 of 2010 upheld conviction and sentence of life imprisonment.2. The Chamber Summons is an abuse of the court process. It lacks merit and is hereby dismissed.3. The applicant to lodge appeal in Court of Appeal as provided by article 50 (2)(q) of the ConstitutionIt is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT MACHAKOS THIS 4thMAY, 2022. M.W. MUIGAIJUDGE