[2023] KEHC 24250 (KLR)

Ngumbi v Republic (Petition E002 of 2021) [2023] KEHC 24250 (KLR) (23 October 2023) (Ruling)

Neutral citation: [2023] KEHC 24250 (KLR)

Republic of Kenya

In the High Court at Makueni

Petition E002 of 2021

GMA Dulu, J

October 23, 2023

Between

David Mulwa Ngumbi

Petitioner

and

Republic

Respondent

Ruling

1. Before me is a petition dated April 26, 2021 filed by a prisoner David Mulwa Ngumbi under Articles 27(1), 28, 47(1), 48, 51 and 259(1), as well as Articles 23(1), (3), Article 24, 50(2), (7), 159(1), 165(3) of theConstitution, and Sections 46 of the Prisons Act 2016, and Section 333(2) of theCriminal Procedure Code (Cap 75).

2. The petition is described as relating to Criminal Case No 1298 of 2021 at Machakos and Criminal Case Number 85 of 2018 at Machakos for obtaining by false pretences, wherein the petitioner was serving 7 years imprisonment for murder and obtaining money by false pretences.

3. The applicant relies on a number of cases, among them the Court of Appeal decision inAhamed Abolfathi Mohammed & Another =Versus= Republic (2018) eKLR, on applicability of Section 333(2) of the Criminal Procedure Code, and the case ofSammy Musembi Mbugua & Others =Versus= Attorney General – Constitutional Petition No 16 of 2019 wherein Section 46(2) of the Prisons Act was alluded to.

4. The petitioner seeks the following orders:-i.That this court has jurisdiction to hear this petition under Article 22, 50(7), 159, 160(1), 165(2)(b)(d) of theConstitution.ii.The respondent (failed) to apply Section 46(2) of the Prisons Act and Section 333(2) of the Criminal Procedure Code to the letter in relation to the time spent in remand being accounted for in the sentence of the petitioner.iii.A declaration that the conduct of the respondent of not taking into account the time spent in remand violated their constitutional rights.iv.An order that the Hon AG, the Commissioner General of Prisons, the Officer in Charge Makueni Main Prison or where the petitioner is held compute petitioner’s sentence putting into account the time spent in remand.v.Any other order that the court deems just under Article 23 of the Constitution or any other enabling laws bearing in mind all the circumstances of the cases.

5. The petition has grounds and was filed with an affidavit sworn by the petitioner David Mulwa Ngumbi on April 26, 2021 in which it was deponed that it is in the best interests of justice for this court to issue the orders sought in the interest of justice. Annexed to the affidavit is the copy of the judgment in Makadara CM Criminal Case Number 1298 of 2011 delivered on September 12, 2018 wherein the petitioner was convicted of four (4) counts of obtaining, defrauding and uttering false documents.

6. Also enclosed is a copy of a judgment in Machakos High Court Criminal Appeal No 85 of 2018 wherein it was acknowledged that Criminal Case No 1298 of 2011 was a Machakos Magistrates court case, and wherein the appeal of the petitioner herein was dismissed on April 24, 2020, and convictions and sentences in counts 2 and 3 were quashed. The appeal against conviction and sentence in count 1 and 4 were however dismissed.

7. This petition was canvassed through written submissions. In this regard the petitioner relied on a document headed Amended Grounds Of Appeal which he filed on June 6, 2022 urging that he had reformed in prison and asked for leniency. On their part, the Director of Public Prosecutions relied on submissions they filed on September 7, 2022 in which they contended that the appellant had been serving prison sentence in other criminal cases when he was convicted and sentenced herein and could thus not claim that his period in custody pending trial was not considered. The Director of Public Prosecutions also contended that the petitioner had not demonstrated that any of his constitutional rights was violated.

8. I have considered the petition and its accompanying affidavit, as well as the submissions of the petitioner and those of the Director of Public Prosecutions.

9. Though the petitioner has listed several prayers in his petition, in submissions he has restricted himself to review of sentence.

10. Indeed, under Article 22 and 23 of theConstitution, the High Court has jurisdiction under Article 165 to determine applications filed alleging violation or denial of any right or fundamental freedom in the Bill of Rights.

11. In the present case however, in my view the petitioner has not demonstrated any violation of his rights on fundamental freedoms under the Bill of Rights.

12. With regard to his request for review of sentence, the petitioner has relied on Section 333(2) of the Criminal Procedure Code (Cap 75) which requires courts to take into account the period an accused person is in custody pending trial in computing sentence.

13. However, as the Director of Public Prosecutions has mentioned, the petitioner had multiple criminal cases in different courts at the time he was tried herein and sentenced. He had already been convicted and sentenced in other cases.

14. Besides, in the present case, the sentences were ordered to run concurrently, even after the trial court was informed about the previous convictions and sentences.

15. It cannot therefore be said as alleged by the petitioner, that the trial Magistrate did not take into account the provisions of Section 333(2) of the Criminal Procedure Code (Cap 75) when sentencing him herein.

16. Consequently, I find no merits in the petition herein. I dismiss the petition.

DATED, SIGNED AND DELIVERED THIS 23RD DAY OF OCTOBER 2023 VIRTUALLY AT VOI.GEORGE DULUJUDGEIn the presence of:-PetitionerMr. Kazungu for State