[2023] KEHC 27429 (KLR)

Njuki v Republic (Revision Case E024 of 2023) [2023] KEHC 27429 (KLR) (21 November 2023) (Ruling)

Neutral citation: [2023] KEHC 27429 (KLR)

Republic of Kenya

In the High Court at Kiambu

Revision Case E024 of 2023

DO Chepkwony, J

November 21, 2023

Between

Solomon Kimani Njuki

Applicant

and

Republic

Respondent

Ruling

1. Before the court for determination is the undated Notice of Motion Application filed under a certificate of urgency dated 7th February, 2023 filed pursuant to Article 50 (2) (q), 51 (1), (2), 159 and 165 of the Constitution of Kenya.

2. In the certificate, the Applicant seeks for:-a.A consideration of the time already spent in prison and the rehabilitation programmes undertaken.b.An inclusion of the option of a fine in his sentence.c.Inclusion of a non-custodial sentence of the current sentence.

3. The Application is supported by undated Affidavit of Solomon Kimani Njuki, wherein he holds that he was arrested on 5th May, 2017 and charged with the offence of Defilement contrary to Section 8 (1) (3) as read with Section 8(2) of Sexual Offences Act and was sentenced to serve 15 years imprisonment.

4. According to the Applicant, he was in custody from 16th May, 2017 until the date of sentence which was on 19th February, 2020 and now seeks the court to take into consideration this period which he was in custody during this trial. The Applicant further seeks that he be issued with a non-custodial sentence on the remainder of his sentence or to be issue with an option of fine.

5. The Applicant contends that he is an elderly man of 68 years who suffers from Arthritis and high blood pressure which conditions are not favourable in prison. He also contends that he has a family whic depends on him as a father and grandfather.

6. The prosecution on its part stated that it is not opposed to the application subject to the verification of the trial court’s original record of proceedings.

7. The court directed that the original record of proceedings in S.O No.20 of 2017 and for a Presentence Report to be filed to assist the court in its determination in this matter. From the report, the court notes that the Victim who was a 14 year old boy was stigmatised and had to drop out of school and due to this, the victim’s family was opposed to the application on sentence review. As for Applicant’s family, it was supportive of his application on sentence review and are willing to welcome him.

Analysis and Determination 8. Before this court embarks on considering the application by the Applicant, it is important that the provisions upon which the application is premised to be appreciated. Article 50 of the Constitution states as follows:-(1)Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.(2)Every accused person has the right to a fair trial, which includes the right—a.to be presumed innocent until the contrary is proved;b.to be informed of the charge, with sufficient detail to answer it;c.to have adequate time and facilities to prepare a defence;d.to a public trial before a court established under this Constitution;e.to have the trial begin and conclude without unreasonable delay;f.to be present when being tried, unless the conduct of the accused person makes it impossible for the trial to proceed;g.to choose, and be represented by, an advocate, and to be informed of this right promptly;h.to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly;i.to remain silent, and not to testify during the proceedings;j.to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence;k.to adduce and challenge evidence;l.to refuse to give self-incriminating evidence;m.to have the assistance of an interpreter without payment if the accused person cannot understand the language used at the trial;n.not to be convicted for an act or omission that at the time it was committed or omitted was not—i.an offence in Kenya; orii.a crime under international law;o.not to be tried for an offence in respect of an act or omission for which the accused person has previously been either acquitted or convicted;p.to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing; andq.if convicted, to appeal to, or apply for review by, a higher court as prescribed by law.

9. Article 159 of the Constitution provides as follows:-159. (1)Judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under this Constitution.(2)In exercising judicial authority, the courts and tribunals shall be guided by the following principles—a.justice shall be done to all, irrespective of status;b.justice shall not be delayed;c.alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3);d.justice shall be administered without undue regard to procedural technicalities; ande.the purpose and principles of this Constitution shall be protected and promoted.(3)Traditional dispute resolution mechanisms shall not be used in a way that—a.contravenes the Bill of Rights;b.is repugnant to justice and morality or results in outcomes that are repugnant to justice or morality; orc.is inconsistent with this Constitution or any written law.

10. And Article 165 of the Constitution provides for:-“(1)There is established the High Court, which—a.shall consist of the number of judges prescribed by an Act of Parliament; andb.shall be organised and administered in the manner prescribed by an Act of Parliament.

11. Clearly, Article 50 is about the right to fair hearing for an accused person. Article 159 provides for judicial authority, while Article 165 provides for the establishment of the High Court and the external of its jurisdiction.

12. The power to determine an application of this nature is made in exercise of the supervisory jurisdiction of the High Court in criminal cases provided under Article 165(6) and (7) of the Constitution and Sections 362 and 366 both of the Criminal Procedure Code. Article 165 (a) of the Constitution provides:-“Sub-Article (7) provides:“For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.Section 362 of the Criminal Procedure Code states that:-[362].The 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”

13. Section 364 of the Criminal Procedure Code states that:-[362].The 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

14. The Applicant has sought for the period he spent in custody during the pendency of his trial and this is provided for under Section 333(2) of the Criminal Procedure Code as follows: -“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 sub section (1) has prior, to such sentence shall take account of the period spent in custody.”

15. According to The Judiciary Sentencing Policy Guidelines:-“The proviso to Section 333(2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody if the convicted person had been in custody during the trial. Failure to do so impacts on the overall period of detention which may result in an excessive punishment that is not proportional to the offence committed. In determining the period of imprisonment that should be served by an offender, the court must take into account the period in which the offender was held in custody during the trial.”

16. In this case, the court notes that the accused was arrested on 16th May, 2017 and charged with the offence of defilement of a boy child aged 14 years old. He was tried, convicted and sentenced vide a Judgment delivered on 19th February, 2020. Before sentence, the court notes that the Applicant informed the trial court that he had been in remand for three years, was a first offender and was a family man who was elderly. The trial court then held that it had considered the mitigation but had noted that the offence of defilement attracted a custodial sentence and proceeded to duly sentence the Applicant to serve fifteen (15) years imprisonment.

17. The Applicant was charged under the provisions of Section 2(1), (2) and (3) of the Sexual Offences Act, No.3 of 2006. Section 8(1) provides for the offence in the following terms:-(1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.

18. Section 3 provides for the penalty as follows:-(1)A person commits the offence termed rape if—(a)he or she intentionally and unlawfully commits an act which causes penetration with his or her genital organs;(b)the other person does not consent to the penetration; or(c)the consent is obtained by force or by means of threats or intimidation of any kind.(2)In this section the term “intentionally and unlawfully” has the meaning assigned to it in section 43 of this Act.(3)A person guilty of an offence under this section is liable upon conviction to imprisonment for a term which shall not be less than ten years but which may be enhanced to imprisonment for life.

19. As will be seen, the offence for which the Applicant was charged with provides for a imprisonment of a term of not less than twenty (21) years. The Applicant was sentenced to serve fifteen (15) years imprisonment.

20. The court has considered the prayers of the Applicant for consideration of a non- custodial sentence or an option of a fine. However, for the reason that the offence the Applicant was found guilty of, the court finds the same heinous and having been committed against an innocent boy’s life who suffered disorientation due to the Applicant’s actions.

21. This court, being guided by the principles of sentencing is reluctant to vary the custodial sente3nce that was passed against the Applicant by according him an option of fine or non-custodial sentence. However, the court has taken into consideration the period spent in custody during the pendency of his trial being 16th May, 2017 to 19th February, 2020 when he was sentenced in calculating the fifteen (15) years imprisonment he was sentenced.

22. In the resultant, the Notice of Motion Application herein partially succeeds and orders issue that the sentence of fifteen (15) years imposed which the Applicant was ordered to serve to run from 16th May, 2017. It is so ordered.

RULING DELIVERED, DATED AND SIGNED AT KIAMBU THIS 21ST….DAY OF NOVEMEBR , 2023. D. O. CHEPKWONYJUDGEIn the presence of:Mr. Gakaria counsel for RespondentApplicant in person - presentCourt Assistant - Martin