[2023] KEHC 23351 (KLR)

Odanga v Republic (Criminal Revision E030 of 2020) [2023] KEHC 23351 (KLR) (11 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23351 (KLR)

Republic of Kenya

In the High Court at Nakuru

Criminal Revision E030 of 2020

SM Mohochi, J

October 11, 2023

Between

David Tiema Odanga

Applicant

and

Republic

Respondent

(An Application for Review under section 362 and 364 of the Criminal Procedure Code CAP 75)

Ruling

1. By Notice of Motion supported by the Sworn Affidavit of David Tiema Odanga all dated November 4, 2019, the Applicant moves the Court for review of the Sentence of Death as set by the Trial Court in Nakuru Chief Magistrate’s Court Criminal Case No 602 of 2002 and that:i.That the mandatory death sentence is unconstitutional and is seeking an appropriate sentence

2. This Court conforms to the school that, disturbing the discretion of a Subordinate Court should be done sparingly and only in the most deserving of cases SeeOgolla S/o Owuor v R {1954} EACA 270on when the Court will interfere with discretion of trial court in sentencing, that:'The Court does not alter a sentence unless the trial Judge has acted upon wrong principles or overlooked some material factors. This was further echoed in the dictum of the cases in R v Shershowsky {1912} CCA TLR 263 as emphasized in Shadrack Kipkoech Kogo v R Criminal Appeal No 253 of 2003 thus 'Sentence is essentially an exercise of discretion by the trial Court and for this Court to interfere it must be shown that in passing the sentence, the sentencing Court took into account an irrelevance factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered.' (See also Sayeka v R {1989} KLR 306)

3. Owing to the foregoing, it is important for this Court to consider its jurisdiction as was held in the case of Samuel Kamau Macharia Vs KCB & 2 others, Civil Application No 2 of 2011'A court’s jurisdiction flows from either the constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.'

4. Article 50(2) of the Constitution provides: -'Every accused person has the right to a fair trial, which includes the right-(q)if convicted, to appeal to, or apply for review by, a higher court as prescribed by the law.'

5. Article 165(6) of the Constitution empowers the High Court to exercise supervisory jurisdiction over Subordinate Courts. The Criminal Procedure Code is the Statute that expounds on this jurisdiction. Section 362 of the Criminal Procedureprovides: -'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 subordinate court.'

6. Section 364 of the criminal procedure Code empowers the High Court to exercise its revisionary powers …. conferred to it as a Court of Appeal by Sections 354, 357, and 358 and may enhance the sentence.

7. In the case of Prosecutor vs Stephen Lesinko [2018] eKLR Nyakundi J outlined the principles which will guide a Court when examining the issues pertaining to Section 362 of the Criminal Procedure Code as follows: -a.Where the decision is grossly erroneous;b.Where there is no compliance with the provisions of the law;c.Where the finding of fact affecting the decision is not based on evidence or it is result of misreading or non-reading of evidence on record;d.Where the material evidence on the parties is not considered; ande.Where the judicial discretion is exercised arbitrarily or perversely if the lower court ignores facts and tries the accused of lesser offence.

8. This Court accordingly called for the entire record relating to the Applicant and noted the following: -a.The Application was placed before Justice Ngugi on the May 25, 2020. b.The Court transferred the matter to the Chief Magistrate’s Court for re-sentencing.c.On the March 11, 2021 Hon Arika L in the presence of the Applicant delivered a judgment substituting the death sentence with the period served so far plus a probation for a period of two (2) years from the date of the Order.d.The Officer in Charge of Naivasha was to release the Applicant to the Probation Officers unless he was lawfully held for any other reason.

9. In the upshot, this Application is without merit and is accordingly dismissed.

10. The Applicant ought to have fully served his sentence by now and if by any chance he is still in custody then an Order for his immediate release is hereby made, unless he was lawfully held for any other reason.

11. It is So Ordered.

SIGNED, DATED, AND DELIVERED VIRTUALLY AT NAKURU ON THIS 11TH OCTOBER 2023. ............................MOHOCHI S.MJUDGE