[2023] KEHC 25360 (KLR)

RKK v Republic (Miscellaneous Criminal Application E026 of 2022) [2023] KEHC 25360 (KLR) (14 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25360 (KLR)

Republic of Kenya

In the High Court at Kabarnet

Miscellaneous Criminal Application E026 of 2022

RB Ngetich, J

November 14, 2023

Between

RKK

Applicant

and

Republic

Respondent

(Appeal vide Kabarnet High Court Criminal Appeal No. 14 of 2017 against both the conviction and sentence which was heard and determined by Hon. Edward M. Mureithi through a judgment delivered on the 22nd day of May,2019 Criminal Appeal 14 of 2017 )

Ruling

Background 1. The applicant was charged with the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual offences Act No. 3 of 2006. The particulars of the offence were that the accused on the 23rd day of April, 2011 in Marigat Township within Baringo county did intentionally and unlawfully caused his penis to penetrate the vagina of DC a girl aged six years in violation of the said Act.

2. The Appellant faced an alternative charge of indecent Act with a child contrary to section 11(1) of the Sexual offences Act No. 3 of 2006. The particulars of the offence being that the accused on the 23rd day of April, 2011 in Marigat Township within Baringo County did intentionally and unlawfully caused his penis to come into contact with the vagina of DC a girl aged 6 years in contravention of the said Act.

3. The applicant denied all the charges and the matter was set down for full trial where upon the close of the prosecution and defence case, the trial court delivered judgment on the August 17, 2011, found the accused guilty, convicted and sentenced him to life imprisonment.

4. Dissatisfied with the conviction and the sentence of the trial court, the Applicant preferred an appeal vide Kabarnet High Court Criminal Appeal No. 14 of 2017 against both the conviction and sentence which was heard and determined by Hon. Edward M. Mureithi through a judgment delivered on the 22nd day of May,2019 where the court found no merit in the appeal and dismissed the same on both conviction and sentence.

5. The Applicant now seeks review in accordance to article 50(2)(p)(q), article 27, article 22, 23 25 of the Constitution of Kenya ,2010, Section 362, 364(1) & 365 of the CPC; he prays lesser sentence and/or to be admitted to a non-custodial sentence basis. He says he is a first offender, remorseful, repentant and has reformed as he has learned to take responsibility of his own actions. He states that he is a young man praying to be re-integrated to the society to serve as a role model, a teacher/mentor to others of similar behavior.

6. The applicant avers that he has served a substantial part of his sentence, more than a third and urges this court to be guided by the sentencing policy guidelines of 2016 published by the Kenya judiciary; on the June 5, 2023 when the matter came up for hearing, he urged this court to reduce the sentence and that he regrets the offence and has young children.

Submissions 7. The Applicant submitted that his rights and fundamental freedoms were breached by being sentenced to serve a mandatory minimum sentence, which fettered the court’s discretion to impose appropriate sentence arrived at without considering his mitigation mitigation hence the court breached his rights to a fair trial as enshrined in articles 25(c) and 50(2) of the Constitution .

8. He submitted that he is not only complaining about the severity of the sentence but he is also complaining about the legality of the mandatory minimum sentence as provided by the statute, imposed by the trial court and affirmed by the appellate courts.

9. He submitted despite being a first offender and mitigation being submitted to trial court, the court’s hands were tied and could only impose the sentence as set by the legislation. He cited the case of Maingi & 5others v Director of Public Prosecutions &another (Petition E017 of 2021)[2022]KEHC 13118(KLR) where the court declared the mandatory application of sentences under the Sexual Offences Act unconstitutional for violating article 27 and 28 of the Constitution and the same position was echoed and affirmed by the Constitutional court in Petition No. 97 of 2021 Edwin Wachira & 9others v Republic as consolidated with Petition No.88 of 2021, 98 of 2021 and 57 of 2021.

10. The Applicant submits that the High court is mandated to address the alleged violation of the applicant’s fundamental rights to benefit from the least possible sentence pursuant to articles 50(2) (p) which considers his mitigation and the facts of the case. That it is only prudent that this honourable court gives the applicant appropriate relief pursuant to articles 23 of the Constitution .

11. The applicant proceeds to submit that after a thorough soul searching and reflection on the facts adduced during trial, he has taken full and personal responsibility for the crime as charged and convicted and has undergone punishment, repercussions and felt the effects of the offence while in custody; that the time he has been in custody has served the purpose of sentencing as it has given him the opportunity to transform his entire life. That he committed the offence as a result of ignorance of the law for which he is remorseful. He submits that the sentence imposed is harsh and excessive sentence of life imprisonment.

12. He further submits that he is a man of advanced aged now aged 40 years and is suffering from age related illness; and he has engaged in rehabilitation activities while in prison and has earned various certificates.

13. He submits that he is married with children and urged this court to find that he is fit to regain his lost dignity by allowing him rejoin his family; that his parents have passed on and his continued incarceration cannot help him accomplish his duties.

14. He submits that discretion in sentencing is a vital element of our law and at the heart of that discretion is that each case should be treated on its own facts or merits and it is precisely for this reason that the sentence discretion lies with the trial court.

Respondent’s Submissions 15. The state counsel submits that judgement in Kabarnet High Court HCCR No. 14 of 2017(Formerly Eldoret HCCRA No. 189 of 2011) was delivered on the May 22, 2019 by Hon. Judge Edward Mureithi. And this court does not have jurisdiction to sit and or review a judgement or a decision of another Judge of concurrent jurisdiction.

16. That review of sentence can only be handled by the court of appeal or if this Honourable court was sitting on appeal of the Judgement from the lower court or if the Applicant is seeking for re-sentence after exhausting all appeal mechanisms and not otherwise and cited the case of Daniel Otieno Oracha v Republic 2019 eKLR.

17. She further submits that the appellant has neither exhausted all appellate options for him to apply for resentence before this Honourable court nor is this Honourable court sitting on appeal of the judgement from the lower court. She submits that all the cases cited in his application were delivered in the year 2021 and the law does not apply retrospectively; that unlike in Muruatetu’s case where the court directed that the pending cases be taken for resentencing, the court in the cited cases never gave such a direction but only applied the new jurisprudence to the cases it was handling at the instant time since that was the law then.

Analysis And Determination 18. I have considered the application and the submissions made by both parties and what I wish to consider is whether this court has jurisdiction to revise sentence herein.

19. The issue of this Court’s jurisdiction has been raised and addressed by both parties. The Applicant argues that this Court has jurisdiction under sections 354, 364 and 365 of the C.P.C to hear and determine his application for sentence review. The Respondent on the other hand contends that this Court lacks jurisdiction to handle this matter having earlier on determined the appeal.

20. It is not disputed that the applicant had his appeal heard and determined by this Court. The applicant having appealed to this Court and his appeal determined did not pursue further appeal to the Court of Appeal. The Supreme Court considered the issue of review of judgements and orders in Fredrick Otieno Outa v Jared Odoyo Okello & 3 others [2017] eKLR and held that:-“…we hold that as a general rule, the Supreme Court has no jurisdiction to sit on appeal over its own decisions, nor to review its decisions, other than in the manner already stated in paragraph (90) above. However, in exercise of its inherent powers, this Court may, upon application by a party, or on its own motion, review, any of its Judgments, Rulings or Orders, in exceptional circumstances, so as to meet the ends of justice. Such circumstances shall be limited to situations where:(i)the Judgment, Ruling, or Order, is obtained, by fraud or deceit;(ii)the Judgment, Ruling, or Order, is a nullity, such as, when the Court itself was not competent;(iii)the Court was misled into giving Judgment, Ruling or Order, under a mistaken belief that the parties had consented thereto;(iv)the Judgment or Ruling, was rendered, on the basis of a repealed law, or as a result of, a deliberately concealed statutory provision.”

21. From the foregoing, for a party to successfully move a court to review its own decision or that of a court with coordinate jurisdiction, the party is required to meet certain conditions established in the above case.

22. I however note that sentence upheld by the appellate court was life imprisonment. Life imprisonment has been declared unconstitutional by Malindi case Court of Appeal in Malindi Criminal Appeal No 12 of 2021 Between Julius Kitsao Manyeso v Republic. In view of the fact that the legal position has changed in respect to sentence of life imprisonment, this court has jurisdiction to revise the sentence so as to comply with decision by superior court. I am therefore inclined to set aside sentence of life imprisonment and impose determinate sentence.

23. Final orders: -1. The sentence of life imprisonment is hereby set aside.2. Applicant to serve 25 years imprisonment.3. The period served in remand to be reduced from the sentence above.

RULING DELIVERED, DATED AND SIGNED IN OPEN COURT AT KABARNET THIS 14TH DAY OF NOVEMBER 2023. ...........................RACHEL NGETICHJUDGEIn the presence of:ApplicantCA KaranjaMs. Ratemo Prosecution counsel