[2022] KEHC 10394 (KLR)

Muyeya v Republic (Miscellaneous Criminal Application E008 of 2021) [2022] KEHC 10394 (KLR) (17 May 2022) (Judgment)

Neutral citation: [2022] KEHC 10394 (KLR)

Republic of Kenya

In the High Court at Kisumu

Miscellaneous Criminal Application E008 of 2021

JN Kamau, J

May 17, 2022

Between

Elisha Omukaya Muyeya

Applicant

and

Republic

Respondent

Judgment

Introduction 1. The petitioner herein was tried and convicted on count I for the offence of robbery with violence contrary to section 296 (2) of the Penal Code and Count II for the offence of rape contrary to section 140 of the Penal Code. He had also been charged with an alternative charge of indecent assault of female contrary to section 144(1) of the Penal Code. He was sentenced to death on count i, which was later reviewed to life sentence and five (5) years imprisonment on count II.

2. Being dissatisfied with the said decision, he lodged an appeal in the High Court being, HCCRA No 73 of 2006 which was dismissed in its entirety.

3. This court noted from his affidavit and submissions that he subsequently filed Petition No 63 of 2019 (not on the court file at the time of writing this judgment) where this court reviewed his death sentence to twenty five (25) years imprisonment.

4. On 19th January 2021, he filed this application for review of the sentence. In his Affidavit in support of his application, he sought for mercy and leniency under article 50(2)(p) of the Constitution of Kenya, 2010 which entitled him to the least severe of the prescribed punishment for an offence and urged this court to consider section 333(2) of the Criminal Procedure Code. In this regard he placed reliance among other cases, the case of Ahamad Albofathi Mohamed & Another vs Republic [2018]eKLR.

5. In his written submissions that were filed on July 26, 2021, he contended that during the delivery of the judgment on resentencing, Cherere J ordered that the sentence run from the date of conviction, May 9, 2006. He added that after his arrest, he remained in custody and was not released on bail or bond pending the hearing and determination of his case.

6. He pointed out that this court had jurisdiction under article 165, 22 and 23 of the Constitution of Kenya, 2010 to hear and determine application for redress or review and the question of violation of rights. He added that article 21(2) of the Constitution of Kenya placed a fundamental duty upon the state and every state organ including the judiciary to observe, respect, protect, promote and fulfil the rights and fundamental freedoms in the bill of rights.

7. He contended that he was currently forty eight (48) years old and at the time of his arrest, his wife left his children with his parents who later passed on leaving his children desperate.

8. He explained that he had undergone trainings in life skills support courses such as Lamp and Light, Prisoner’s Journey, Bible League International, and Emmaus while in custody. He asserted that he had related well with all prison officers and fellow inmates and had never been charged with indiscipline issues.

9. He averred that he was a first offender and was remorseful of the events that led to the criminal acts and pleaded for a second chance to re-unite with his family and for nation building. He thus urged the court to allow his application and grant the orders sought.

10. On its part, the State opposed his application on the grounds that his sentence had already been reviewed and that his application was an abuse of the court process. It averred that the sentence meted was sufficient considering the circumstances of the case.

11. It was emphatic that while reviewing the sentence, this court ordered the sentence to run from date of conviction. In the foregoing, it urged the court to dismiss the applicant’s application for review of sentence and uphold his conviction and sentence.

Legal Analysis 12. Notably, the applicant’s application was based on section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya). The aforesaid section 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.”

13. Having said so, both parties were agreed to the fact that the applicant’s sentence had already been reviewed by Cherere J who indicated as to when the aforesaid sentence ought to have started running. The learned judge was of equal and competent jurisdiction as this court. Consequently, this court could not purport to review and/or vary her decision and/or sit on appeal on her decision as its hands were tied by her pronouncement of when his sentence was to commence.

14. As she had since left the jurisdiction of this court and could not therefore review her orders, if at all there was an error, the only option that was left to the applicant herein was to appeal at the Court of Appeal if he was dissatisfied with her decision.

Disposition 15. For the foregoing reasons, the upshot of this court’s decision was that the applicant’s application for review of sentence that was lodged on January 19, 2021 was not merited and the same be and is hereby dismissed.

16. It is so ordered.

DATED AND DELIVERED AT KISUMU THIS 17TH DAY OF MAY 2022J. KAMAUJUDGE