[2022] KEHC 10620 (KLR)

Muema v Republic (Miscellaneous Criminal Case E082 of 2021) [2022] KEHC 10620 (KLR) (14 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10620 (KLR)

Republic of Kenya

In the High Court at Machakos

Miscellaneous Criminal Case E082 of 2021

MW Muigai, J

June 14, 2022

Coram: M.W. Muigai – LJ) IN THE MATTER OF CRIMINAL CASE NO. 4 OF 2017 AT KANGUNDO LAW COURTS AND IN THE MATTER OF CRIMINAL APPEAL NO. 48 OF 2017 AT MACHAKOS HIGH COURT AND IN THE MATTER OF RE-TRIAL CRIMINAL CASE NO. 48 OF 2018 AT KANGUNDO LAW COURTS

Between

Francis Muema

Applicant

and

Republic

Respondent

Ruling

1. The applicant herein Francis Muema was charged in the Senior Principal Magistrate Court at Kangundo in Criminal Case S.O. No. 4 of 2017 with the offence of defilement contrary to section 8(1) as read with section (3) of the Sexual offences Act No. 3 of 2006 and convicted to serve a period of 20 years imprisonment on 28/03/2017.

2. Aggrieved by the conviction and sentence the applicant filed an Appeal in this Court being Machakos Criminal Appeal No. 48 of 2017. On 19/09/2019 the court quashed the sentence and ordered for a re-trial to be heard at Kangundo Law Courts.

3. The matter was heard afresh vide Kangundo Criminal Case S.O. No. 48 of 2018 and a total of five witnesses testified in support of the case and judgment delivered on April 28, 2021 whereby the applicant was convicted to serve a period of five (5) years imprisonment.

Notice of Motion: 4. The applicant herein Francis Muemafiled an application on November 16, 2021 seeking the following orders:a.That his sentence be reviewed for time spent in custody as a convict prior to being sent on Re-Trial be included in his sentence.b.That if the prayer (a) succeeds he be given a non-custodial sentence for the remaining time of sentence as enshrined in the Probation of Offenders Act. Cap 64(5) (1).c.That he be present during the hearing of this application.

5. The application is supported by the applicants affidavit filed in court on the same date based on the following grounds:-a.That the applicant is currently held at Machakos Main Prison serving 5 year imprisonment for the offence of defilement.b.That the Trial Magistrate erred in law and fact by not considering the period he spent in custody as a convict prior to being sent on retrial before his conviction on April 28, 2021. c.He be given a non-custodial sentence or community based sentence for the remaining time of sentence as enshrined in the Probation of Offenders Act. Cap 64(5) (1).

6. On 1December 6, 2021 this matter came up for mention and the Court directed the respondent/state to respond to the applicant’s application and both parties file submissions.

Applicant’s Submissions 7. The applicant filed submissions in court on January 20, 2022 and submitted that the Trial Magistrate while executing the sentence disregarded time already spent in custody as a convict before being sent on retrial.

8. Reference was made in regard to section 333(2) of the Criminal Procedure Code which provides as follows:“Subject to the provisions of section 38 of the Penal Code(Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.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.”

9. In the case of Ahamad Abolfathi Mohammed & Anor vs Republic [2018] eKLR the Court of Appeal stated that:-The second is the failure by the court to take into account in a meaningful way, the period that the appellants had spent in custody as required by section 333(2) of the Criminal Procedure Code. That provision provides as follows:“333(2) Subject to the provisions of section 38 of the Penal Code(Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.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.”

10. Also reliance was made in the case of Vincent Sila Jona & 87 Others –Vs- Kenya Prisons Services and 3 others– PET NO.15 of2020 [2021] eKLR where the Court in delivering its Ruling stated:i.that Trial Courts are enjoined by section 333(2) of the CPC in imposing sentences, other than sentence of death to take account of the period spent in custody.......................(iv)that in determining “admission” by the prisons authorities for the purposes of Section 46(2) of the Prisons Act, the relevant date is the date when the prisoner was first admitted to prison upon conviction and not the date of resentencing.................................

11. The applicant further submitted that he has been in custody as an inmate for 18 months and 3 months as a remandee upon retrial and prays that this court consider this period.

12. On the issue of being given a non-custodial the applicant stated that during his stay in prison he has engaged in various rehabilitative programs during his stay in custody in line with the Kenya prison’s services tagline of “kurekebisha na haki” and is now ready to be integrated back into the society as a reformed citizen and has acquired several certificates.

Respondent’s Submissions 13. The respondent through Mr. Mwongera filed their submissions dated February 21, 2022 submitted that the applicant was convicted and sentenced to 20 years’ imprisonment on March 28, 2017 and a retrial order was issued on September 21, 2018 hence the accused was in custody for 542 days (1 years, 5 months, 24 days).

14. The Re-trial matter proceeded in Kangundo Law Courts via Criminal Case No. 48 of 2018 and the applicant was convicted and sentenced to 5 years imprisonment.

15. In the case of Republic vs Scott (2005) NSWCCA 152 the Court held that:“There is a fundamental and immutable principle of sentencing that this sentence imposed must ultimately reflect the objective seriousness of the offence committed and there must be a reasonable proportionality between the sentence passed in the circumstances of the crime committed. One of the purpose of punishment is to ensure that an offender is adequately punished... a further purpose of punishment is to denounce the conduct of the offender.”

16. Also; in the case of Bernard Kimani Gacheru –vs- Republic[2002 eKLR the Court of Appeal 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 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.”

17. The respondent further submitted that section 8(1) of the Sexual Offences Act, No. 3 of 2006 provides a person who commits and which causes penetration with a child is guilty of an offence termed defilement.

18. Section 8(3) of the Sexual Offences Act; provides a person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.

19. The respondent submitted that the trial court was too lenient to the applicant and prays that this court should enhance he sentence to 20 years imprisonment as provided by the law.

Determination Review/Revision364. 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;…………………………………………………………………(5)When an appeal lies from a finding, sentence or order, and no appeal is brought, no proceeding by way of revision shall be entertained at the insistence of the party who could have appealed.

Computation of Sentence 20. The court gleaned through the trial record Kangundo Law Court No 4 of 2017 where the applicant was read the charges in Kiswahili on 27/1/2017 and he pleaded guilty and was convicted on his own plea of guilt. He was sentenced to 20 years imprisonment. He served the 20 years imprisonment term until his petition and memorandum of appeal was heard and determined and on September 21, 2018, Hon. G.V. Odunga J ordered a retrial.

21. The retrial commenced in Kangundo Law Courts 48 of 2018 from 27/9/2018 and he was convicted on 28/4/2021. The Applicant sought that the period he was in custody during retrial be taken into account in terms of section 333(2) CPCto commence sentence of 5 years from the date of custody during retrial.The court notes the following of the re trial Proceedings;a.Plea was taken on 27/9/2018 and bond granted at Ksh 300,000/-b.Bond Terms were reviewed on 8/10/2018 to Ksh 150,000/-c.Bond Terms were further reviewed on 25/10/2018 to Ksh 100,000/-d.Bond Processing & Approval was on 23/11/2018 through surety one Emmanuel Mutinda Muthike.

22. The applicant /accused in the Retrial proceedings was released on bond and not in custody as envisaged by section 333(2) CPC. The application for computation of sentence is denied and dismissed.

23. The applicant was not in custody during retrial but out on bond and in the earlier case, he was serving sentence after conviction and sentence after he pleaded guilty. The notice of motion of 16/11/2021 for review of sentence is hereby dismissed.

24. Therefore, with regard to the application of section 333(2) CPC to computation of sentence the application is denied/dismissed under section 8 (1) and (3) of the Sexual Offences Act, which provides;“A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.”

25. The Trial Court found the victim was aged 15 years old at the time of the offence; the accused person was well known to the Victim and her parents, the medical evidence coitus by the applicant and at the time of arrest the applicant was found with the victim whom he took away when the victim’s father sent him to take cement at home and he found and lured the victim away.

26. The applicant opted and remained silent in his defense during retrial and was convicted and sentenced to serve 5 years imprisonment.

Enhancement of Sentence 27. The DPP/Prosecution submitted that the court ought/should enhance the sentence from 5 years imprisonment meted out by the trial court 20 years as mandatory minimum sentence under Sexual Offences Act.

28. With regard to enforcement of mandatory minimum sentence as prescribed by our laws, there is emerging jurisprudence on application of minimum sentences as follows;

29. The binding precedent of the Apex Court; Supreme Court in Francis Karioko Muruatetu &another vs Republic[2017]eKLR ( hereinafter referred to Muruatetu 1); relying on the Privy Council case of Spence vs The Queen where Byron CJ held;in order to be exercised in a rational and non-arbitrary manner, the sentencing discretion should be guided by legislative or judicially prescribed principles and standards, and should be subject to effective judicial review ,all with a view to ensuring that the death penalty is imposed in only the most exceptional and appropriate circumstances. There should be a requirement for individualized sentencing in implementing death penalty.The Supreme Court declared death penalty unconstitutional.

30. In Francis Karioko Muruatetu vs Republic; Katiba Institute & 5 Others (amicus Curiae) [2021] e KLR (hereinafter Muruatetu 2) The Supreme Court clarified;The decision of Muruatetu and these guidelines apply only in respect to sentences of murder under section 203 & 204 of the Penal Code……

31. Recently of persuasive authority, the High Court in Petition No E 017 of 2021 Hon. G. V. Odunga J in considering the import of minimum mandatory sentences in Sexual Offences Act No 3 of 2006 held;Taking cue from the decision in Francis Karioko Muruatetu & Another vs Republic [2017] eKLR (Muruatetu 1) the Court held that;those who were convicted of sexual offences and whose sentences were passed on the basis that Trial Courts had [have] no discretion to impose the said mandatory minimum sentence are at liberty to petition the High Court for orders of resentencing in appropriate cases.

32. The jury is still out on application of mandatory minimum sentences; whereas case-law fortifies discretion by the Trial Court to mete out appropriate sentences based on specific circumstances of the case including applying the minimum mandatory sentence, the legislative enactment and policy guidelines are not in place yet as prescribed by the Supreme Court in Muruatetu 1.

33. From the above case-law and the facts of this case as recorded and considered by the trial court, the Trial Court exercised discretion to the circumstances of the case and sentenced the Accused person to 5 years imprisonment. I find no legal basis to enhance the sentence to 20 years unless on appeal under section 364 of CPC.

Disposition1. The applicant’s notice of motion for review/revision of sentence under section 333(2) CPC is denied and dismissed.2. The trial in S.O 4 of 2017, the applicant pleaded guilty and was sentenced to 20 years imprisonment; he was not in custody awaiting sentence but serving sentence.3. The retrial in 48 of 2017, the applicant was out on bond.

DELIVERED SIGNED & DATED IN OPEN COURT IN MACHAKOS ON 14/6/2022 (VIRTUAL CONFERENCE).M.W. MUIGAIJUDGECourt:The Court ICT Platform not working. Matter deferred to 15/06/2022. M.W. MUIGAIJUDGE15/06/2022Court: Ruling read over and explained to Parties/Counsel in Open Court Online.In the Presence of;FRANCIS MUEMA - APPLICANTMWONGERA - FOR RESPONDENTGEOFFREY - COURT ASSISTANT