[2022] KEHC 16300 (KLR)

Mwangi v Republic (Criminal Appeal 131 of 2017) [2022] KEHC 16300 (KLR) (13 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16300 (KLR)

Republic of Kenya

In the High Court at Narok

Criminal Appeal 131 of 2017

F Gikonyo, J

December 13, 2022

Between

Edward Kingori Mwangi

Applicant

and

Republic

Respondent

(Being an appeal from the original conviction and sentence of Hon. T. A. Sitati (S.R.M.) in Narok Criminal Case No. 123 of 2013 on 27th June 2013)

Judgment

Time Spent in Custody 1. The court is considering an undated application filed on September 25, 2017seeking for retrial under articles 165,27(1), 159(2) (a), and (e)of the Constitution and section 358 of the criminal procedure code.

2. The application is based on the grounds that the applicant has new evidence that he wishes to adduce in support of his defence under section 358 of the CPC to form part of the retrial record. He also wishes to call in OB NO 35/3/2013.

3. The applicant and three others were charged jointly with the offence of robbery with violence contrary to section 296(2) of the Penal Code. They were convicted of the offence and sentenced to death by Hon. T. Sitati (SRM) on 27/06/2013.

4. The applicant appealed to the High court at Nakuru vide Criminal Appeal 106 of 2013. See Amos Okinyi Odhiambo & 3 others v Republic[2014] eKLR

5. This court sitting as the appellate court (Mshila J.) set aside the sentence of death and reduced the sentence to fifteen (15) years of imprisonment to commence from the time of his incarceration.

Applicant’s submission 6. The applicant orally submitted that he was only seeking days spent in remand to be taken into account. He further stated that he has abandoned all other grounds of his application.

Prosecution’s submission 7. Ms. Torosi urged this court to consider the part of her submissions on section 333(2) of the CPC.

8. The respondent submitted that it is apparent from the record that the court was guided by sentencing guidelines and the aggravating circumstances in the case imposing a sentence of 15 years.

9. The respondent submitted that this honourable court has no jurisdiction to entertain this petition as it has the same jurisdiction as the high court at Nakuru which passed the sentence of 15 years. Therefore, the applicant ought to go to the court of appeal if aggrieved by the judgment of the high court at Nakuru. The High court should only entertain resentencing in murder cases where the death sentence was passed and not any other cases such as robbery with violence as is in this matter.

Analysis And Determination 1. I note that this file was registered as an appeal instead of a petition.

2. Be that as it may, the application herein is for retrial under article 50(6) of the Constitution. However, during the hearing, the applicant abandoned his original application and now prays for consideration of time spent in custody only.

3. Questions of jurisdiction have arisen in light of the appeal that was determined by this court (Mshila J.). Does the court have jurisdiction to entertain this application as modified by the applicant? If, yes, is there any violation of right? The latter will depend on the result of the former question.

4. The circumstances of this case is a kind of squirm. The applicant filed an appeal before this court (Mshila J.) which was determined. Now, the applicant has modified his application orally in court by abandoning the quest for retrial and instead sought for seek review of sentence on the basis of section 333(2) of the CPC.

5. It is quite an entanglement on jurisdiction here as the applicant intends to invoke the jurisdiction of this court in an action ‘’for redress of a denial, violation, or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights’’ underarticle 23(1) and 165(3)(b) of the Constitution.

6. But, courts are experienced in dealing with such difficult situations by reference to the law and the circumstances of the case. I should, therefore, take note of salient elements of sentencing in the judgment of this court (Mshila J.) to determine this application without sitting on appeal thereof.

7. The applicant herein was convicted of the offence of robbery with violence contrary to section 296(2) of the Penal Code.

8. The appellate court (Mshila J.) Stated as follows: -“We dismiss the fourth appellant's appeal. 37. Other than the third appellant whose appeal we have allowed, the First, Second, and Fourth appellants (whose appeals we have dismissed) were sentenced to death in pursuant to section 296(2) of the Penal Code.

38. We have often stated in this court that the Bill of Rights (Chapter V of the Constitution of Kenya, 2010), and in particular article 26 thereof, guarantees the right to life, death being the final fate of creatures including human beings, we should uphold the right to life. We, therefore, set aside the sentence of death on the said appellants, and sentence them to fifteen (15) years imprisonment to commence from the time of their incarceration.

39. There shall be orders accordingly.”

9. Without saying much, in light of the judgment, any further relief by the applicant including relief under section 333(2) of the CPC, should be sought from the Court of Appeal.

10. In the upshot, I find the application not to be meritorious and is dismissed.

11. It is so ordered.

DATED, SIGNED, AND DELIVERED AT NAROK THROUGH MICROSOFT TEAMS ONLINE APPLICATION, THIS 13TH DAY OF DECEMBER 2022. ......................................F. GIKONYO M.JUDGEIn the Presence of:Ms. Torosi for DPPAccused personMr. Kasaso - CA