[2022] KEHC 10794 (KLR)

Sindani v Republic (Constitutional Petition 11 of 2020) [2022] KEHC 10794 (KLR) (10 May 2022) (Judgment)

Neutral citation: [2022] KEHC 10794 (KLR)

Republic of Kenya

In the High Court at Bungoma

Constitutional Petition 11 of 2020

SN Riechi, J

May 10, 2022

CONSTITUTIONAL PETITION NO. 11 OF 2020 IN THE MATTER OF ARTICLES 22(1), 258(2), 259(1), 23(3), 25, 27, 28, 48, 49(g), 50(1), 50(2)(b), 50(2) (e)(o) & 165(3) OF THE CONSTITUTION

Between

Peter Kuloba Sindani

Petitioner

and

Republic

Respondent

Judgment

1. In his petition dated February 13, 2020, the petitioner seeks a re- hearing on the sentence imposed.

2. The facts leading to this petition are that the petitioner herein and others were charged in Bungoma Chief Magistrates Court Criminal Case No2660 of 2006 with the offence of robbery with violence. After full trial, they were found guilty and sentenced to suffer death. Dissatisfied, they appealed to the High Courtvide Criminal AppealNo13 & 14 of 2008 and after hearing the appellants, F Muchemi and S Chitembwe JJ in a judgement delivered on July 15, 2008 upheld the conviction and sentence.

3. Still dissatisfied, the petitioner appealed to the Court of Appealvide Criminal Appeal No270 of 2009 wherein the court confirmed the conviction and sentence.

4. After exhausting the appeal process, the petitioner now seeks a re-hearing only on the sentence. This court directed parties to file written submissions on the issue. Both parties complied.

5. The petitioner submits that upon close of the prosecution’s case, the court proceeded to fix the matter for defence hearing without supplying him with the proceedings and therefore the petitioner did not have time to prepare thus infringing on his rights under Article 25 of the Constitution. He relies on the authority in R v Thomas Kipkemboi Kipkorir & 2 others (2016)eKLR.He urges the court to consider his age during the commission of the offence which led him into peer pressure. He submits that he has acquired a certificate in trade test grade III in carpentry and joinery.

6. The petitioner also beseeches the court to consider the provisions of section 333(2) of the Criminal procedure Code. He submits that he was arrested in the year 2005 and sentenced in 2008. In this regard, he cites Josiah Mutua Mutunga & another v R(2019)eKLR.

7. On their part, the respondent submits that since the petition is anchored on the provisions of Article 50(6) of the Constitution, the section is applicable only in instances where there is new and compelling evidence. That all the issues raised in the petition were raised and considered by the courts on appeal.

Analysis and determination. 8. This is a petition seeking a re-hearing on sentence. From the material on record, the petitioner although has raised issues suggesting that the learned magistrate erred on some points, this is not tenable at this point in time because in re-sentencing hearing, the propriety of the conviction and or sentence are not in dispute. See Josiah Mutua Mutunga case (supra) where it was held;It therefore follows that in those proceedings the accused is not entitled to take up the issue of the propriety of his conviction. He must proceed on the understanding that the conviction was lawful and restrict himself to the sentence and address the court only on the principles guiding the imposition sentence and on the appropriate sentence in the circumstances.

9. It is common ground that the petitioner was charged in the subordinate court with the office of robbery with violence, convicted and condemned to suffer death. This sentence was however commuted to life imprisonment by the president of the Republic of Kenya. The petitioner also appealed al the way to the Court of Appeal. He thus exhausted all the appellate mechanisms available to him.

10. In our criminal justice system, the judiciary sentencing policy guidelines gives the objectives of sentencing to include; retribution, deterrence, rehabilitation, restorative justice, community protection and denunciation. Similarly, when determining appropriate sentence, the court considers a number of factors including but not limited to the seriousness of the offence, the circumstances under which offence was committed and many more factors.

11. In the instant case, the petitioner was in the company of 7 other members when they committed the offence. They killed one person and injured another one who stayed in hospital for 2 weeks. They robbed Kshs 3,000/=. They were extremely brutal and the victims must have been greatly traumatized.

12. Section 296(2) of the Penal Code prescribes a death penalty; the petitioner has exhausted the appellate mechanism which affirmed the sentence. There is no violation of the petitioner’s rights demonstrated by the courts in imposing the sentence it imposed.

13. It is settled principle that a petition seeking redress of a violation of a constitutional right ought to be specific to the rights and manner of violation. In Anarita Karimi Njeru vs Republic (1979) 1 KLR 154 the principle was stated thus;We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to theConstitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.

14. In this petition, the petitioner has not demonstrated that any of his rights constitutional rights have been violated to require the redress by this court.

15. Consequently the instant petition is lacking in merit and is hereby dismissed.

DATED AT BUNGOMA THIS 10TH DAY OF MAY, 2022S. N. RIECHIJUDGE