[2022] KEHC 10884 (KLR)

Mutua v Republic (Criminal Miscellaneous Application E008 of 2021) [2022] KEHC 10884 (KLR) (6 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10884 (KLR)

Republic of Kenya

In the High Court at Machakos

Criminal Miscellaneous Application E008 of 2021

MW Muigai, J

June 6, 2022

Arising From Criminal Case No. 443 of 2015 & Criminal Appeal No. 21 of 2016

Between

Kennedy Wambua Mutua

Applicant

and

Republic

Respondent

Ruling

Background 1. The Applicant herein John Muithya Mutiso was charged in the Chief Magistrate Criminal Case No. 443 of 2015 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 4th February, 2016.

2. Aggrieved by the conviction and sentence the Applicant filed an Appeal in this Court being Machakos Criminal Appeal No. 21 of 2016 and the Appeal was dismissed and the conviction and sentence upheld.

Chamber Summons 3. Aggrieved by the sentence, the Applicant on 11th March, 2021 filed in Court a Petition under certificate of urgency seeking the following prayers:-(a)That this Court implements the Supreme Court decision and reviews his sentence accordingly following the factors laid out in Evans Wanjala Wanyonyi –vs – Republic [2019] eKLR, court of Appeal Criminal Appeal No. 312 of 2018 at Eldoret.(b)That the Court review his sentence in light of section 333(2) of the CPC.(c)That this Court makes a determination to take into account any mitigating factors beforehand and to give the applicant the appropriate reprieve.(d)That the Applicant be present during the hearing and Ruling of this application.

4. On 11th March 2021 a letter to the Chief Magistrate Machakos calling for the Lower Court file CM CR. Case No. 443 of 2015 to be forwarded was sent.

5. On 10/06/2021 the Applicant appeared in Court and sought to have his sentence reviewed so as to factor the period he spent in custody as well as considering the Supreme Court decision in Muruatetu Case.

6. The Respondent filed their submissions on 8th July, 2021 while the Applicant filed his on 17th November, 2021.

Applicant’s Submissions Mitigation 7. That this Court grants an order to invoke Section 333(2) of the CPC thus considering the period the Applicant spent in custody hence the sentence meted out on him commence from the date of arrest; that this Court consider the fact that he was a 1st offender, he is remorseful and he is seeking leniency, that he has reformed/rehabilitated/changed and is now ready to join the members of the society. The Applicant cited the following cases in support of his case:(i)The case of Patrick Muli Mukutha –vs- Republic – MKS HCRA NO. 58 /2017(ii)The case of Raphael James Michuki –vs- Republic – NBI HCRA no. 69/2012(iii)In the case of Wycliffe Mwilu Mutinda –vs- Republic NBI Cr. Appli. No. 99/2013

Respondents Submissions 8. It was submitted that the Applicant was charged with the offence of defilement contrary to Section 8(1) as read with Section 8 (3) of the Sexual offences Act No. 3 of 2006. The Senior Resident Magistrate (Hon. Hon. I. Kahuya) sentenced the accused person to serve 20 years’ imprisonment.

9. The Applicant was arrested on 10th March, 2015 and took plea on 13th March, 2015. Subsequently he stayed in custody till 4th February, 2016. The applicant had spent 331 days (10 months, 25 days) in custody prior to his conviction and sentence.

10. The Respondent cited the case of Court of Appeal – in the case of Bernard Kimani Gacheru v 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 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 states is shown to exist.”

11. Also reliance was made in the case of Evans Kalo v 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 Applicants 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.”

12. The Respondent finally submitted that the 331 days that the applicant was in custody be factored in his sentence.

Determination Review/revision 13. Criminal Procedure Code provides;362. Power of High Court to call for recordsThe 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 Court.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;……………….(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.

14. High Court of Malaysia in Public Prosecutor v Muhari bin Mohd Jani and Another [1996] 4 LRC 728 at 734, 735 observed:“…..The object of revisionary powers of the High Court is to confer upon the High Court a kind of “paternal or supervisory jurisdiction” in order to correct or prevent a miscarriage of justice. In a revision the main question to be considered is whether substantial justice has been done or will be done and whether any order made by the lower court should be interfered with in the interest of justice…”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 Hon. Kiarie Waweru Kiarie J. in the case of Joseph Maburu alias Ayub vs. Republic [2019] eKLR where he 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 Dictionary Tenth (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.”

15. Section 333(2) of the Criminal Procedure Code provides that:“(2)Subject to the provisions of section 38 of the Penal Code 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.”

16. It is clear from the decisions of Ahamad Abolfathi Mohammed & Another v Republic (supra) and in Bethwel Wilson Kibor v Republic, CA at Eldoret Cri. Appeal No. 78 of 2009 that the period spent in custody must be taken into account before sentencing.

17. The Court of Appeal in Ahamad Abolfathi Mohammed & Another v Republic (supra) held that:-“..Taking into account” the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody. It is not enough for the court to merely state that it has taken into account the period already spent in custody and still order the sentence to run from the date of the conviction because that amounts to ignoring altogether the period already spent in custody. It must be remembered that the proviso to section 333(2) of the Criminal Procedure Code was introduced in 2007 to give the court power to include the period already spent in custody in the sentence that it metes out to the accused person…”

Computation of sentence 18. The Trial Court judgment of 4/2/2016 did not factor in the 20 years sentence would run from the period the Accused person was in custody during trial.

19. The Appeal judgment of 3/10/2019, the issue of computation of sentence was not raised by the Applicant.

20. It is now raised and the record confirms that the period in custody was not factored.

21. Whereas this court lacks jurisdiction to entertain the question of conviction and resentencing, the computation of sentence provided by Section 333(2) CPC is to be factored in the 20 years, the time the Applicant was in custody only.

22. The charge sheet /Information confirms that the Applicant was arraigned in Court on 13/3/2015 and was sentenced on 4/2/2016 a period of 12 months.

23. In Vincent Sila Jona & 87 Others v Kenya Prison Service & 2 Others [2021] eKLR in Petition 15 of 2020, Hon G.V Odunga J held;a.A declaration that all Courts are enjoined by Section 333(2) of CPC in imposing sentences other than sentence of death to take into account the period spent in custody.………………………………………………………

Disposition(1)Pursuant to Section 333(2) of Criminal Procedure Code. The 20 years’ imprisonment sentence will be computed to take into account 12 months and to run from 13/3/2015 the date the Applicant was first arraigned in Trial Court.

DELIVERED SIGNED & DATED IN OPEN COURT IN MACHAKOS THIS 6TH DAY OF JUNE, 2022 (VIRTUAL CONFERENCE).M.W. MUIGAIJUDGE