[2022] KEHC 583 (KLR)

Paul v Republic (Criminal Petition E054 of 2021) [2022] KEHC 583 (KLR) (9 June 2022) (Judgment)

Neutral citation: [2022] KEHC 583 (KLR)

Republic of Kenya

In the High Court at Kisumu

Criminal Petition E054 of 2021

FA Ochieng, J

June 9, 2022

Between

Micheal Ang’Ara Paul

Petitioner

and

Republic

Respondent

Judgment

The Petitioner, Michael Ang’ara Paulhas lodged an Amended Petition, seeking a reduction of the sentence which had been imposed on him. 1. He had been convicted for the offence of Defilement contrary to Section 8 (1) as read with Section 8 (3) of the Sexual Offences Act.

2. The learned trial magistrate sentenced the Petitioner to 20 Years imprisonment.

3. His initial Petition had invoked the provisions of Section 333 (2) of the Criminal Procedure Code. He had asked the Court to order that the period which he had spent in custody, during the time he was still on trial, be considered as a part of the sentence.

4. However, upon the realization that Section 333 (2) of the Criminal Procedure Code was not applicable to his circumstances, the Petitioner filed the Amended Petition.

5. When canvassing the said Amended Petition, he told this Court that he was seeking a reduction of the sentence.

6. He said that the reason for his request was that he was unwell. Secondly, there were many problems at his home.

7. He was thus seeking Mercy and Pardon, so that he could go home.

8. The Petitioner was right to have abandoned his initial Petition, as he was out on bond during the period he was on trial.

9. He invoked the decision of Hon. Lady Justice Aburili in Peter Odhiambo Abonyo v Republic, High Court Criminal Case No. 29 of 2017, to support his case.

10. First, I wish to correct the citation of that case, as it was not an appeal by Peter Odhiambo Abonyo. The said Peter Odhiambo Abonyo was actually the 2nd accused in the case, in which the learned Judge convicted him for the offence of Murder.

11. I have read the learned Judge’s Ruling on the issue of sentencing. I did not find any reference by the Judge to the need for the trial court to take into account the period which an accused had spent on bond; and to use that fact to grant a reprieve when handing down an appropriate sentence.

12. In my considered view, if the learned Judge had given a reprieve to an accused person because the said person had been out on bond during his trial, I would have found it difficult to concur.

13. In that case, the accused was in a group of persons who attacked a Police Officer who had gone to arrest a member of their community. This is what the Judge said;“Killing Public Servants who are deployed to enforce the law and serve the people is one way of saying that crime is acceptable in this community, and that any person who enforces the law is an enemy of the people in this part of the country.That notion must stop; and be stopped by this court.For the reasons above, I hereby sentence the accused person, Peter Odhiambo Abonyo, to serve Thirty (30) years imprisonment, to be calculated, taking into account the period he was placed in custody before being released on bond, and after his bond was cancelled.”

14. The orders are very clear indeed! The Court did invoke the provisions of Section 333 (2) of the Criminal Procedure Code, and directed that the period when the accused was in custody, during his trial, should be taken into account when computing the duration he was to serve the sentence imposed.

15. In the Petition before me, the Petitioner confirmed that he was out on bond during his trial. Therefore, it would be wrong to take into account the period when he was out on bond, when computing the duration which the Petitioner should be in prison, serving the sentence of 20 years imprisonment.

16. Meanwhile, as regards the Petitioner’s plea for Mercy and Pardon, I find that the Court lacks jurisdiction to grant the same.

17. Pursuant to Article 133 of the Contitution of the Republic of Kenya, it is the President who is granted the requisite mandate to exercise a Power of Mercy. In the exercise of that authority, the President may grant a free or conditional pardon to a person who had been convicted for an offence.

18. The Constitution also empowers the President to do any of the following;a.Postpone the carrying out of a punishment, either for a specified or indefinite period; orb.Substitute a less severe form of punishment; orc.remit all or part of a punishment.

19. Parliament enacted the Power of Mercy Act, 2011, to make further provisions with respect to the power of mercy.

20. Pursuant to Section 19 of the Power of Mercy Act, any person may petition the President, through the Advisory Committee on the Power of Mercy.

21. After giving due consideration to the Petition, the Committee would, pursuant to Section 21 (1) (c) of the Power of Mercy Act, make appropriate recommendations to the President, in accordance with the Constitution.

22. Section 23 (1) of the Act stipulates that the President will give consideration to the Committee’s recommendations, and shall either approve or reject the Petition, within 30 days from the date of receipt of the said recommendations.

23. The most that this Court can do for the Petitioner is to offers is advice, so that he can file a Petition to the President, if he is still desirous of seeking mercy and pardon.

24. Meanwhile, the Petition herein is without merit, and is therefore dismissed.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 9 TH DAY OF JUNE 2022FRED A. OCHIENGJUDGE