[2019] KEHC 5904 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KITUI

CRIMINAL MISC. APPLICATION NO. 3 OF 2019

WAMBUA MUITHYA MUNYOKI................................................APPLICANT

VERSUS

REPUBLIC...............................................................................RESPONDENT

R U L I N G

1. Wambua Muithya Munyoki,the Applicant, approached this Court by way of Notice of Motion seeking to appeal out of time against sentence.

2. The Application is premised on grounds that his relatives promised to hire a lawyer to appeal on his behalf but were unable due to financial challenges; and the trial Court delayed to serve him with a copy of proceedings/record hence the delay in the Appeal process.

3. The Application is supported by an affidavit deponed by the Applicant where he deposes; that he is currently serving ten (10) years imprisonmentfor the offence of Robbery with Violencecontrary to Section 296(2)of the Penal Code,having appealed against the sentence imposed by the trial Court of life imprisonment;that the delay of being provided by a copy of the Judgment occasioned the delay of the second Appeal; and that he has chances of being acquitted if the Appeal is heard and determined.

4. The Respondent (State) filed a Replying Affidavit sworn by Mamba Vincent,a Prosecution Counsel who deposed that the Applicant seeks substitution of the custodial sentence with a non-custodial sentence on the grounds that he is deeply remorseful; he has reformed and rehabilitated through the prison programs; he was the sole breadwinner of his family; that he seeks the Court to review the order pursuant to Section 46of the Prison Act,and that the trial Court delayed in serving him with copies of Court proceedings that necessitated the delay in making of the Application.

5. At the hearing of the Application, the Appellant orally sought time to appeal out of time.

6. The Respondent filed submissions in response where it was urged that pursuant to the provisions of Section 361(1)of the Criminal Procedure Codethe Applicant cannot benefit on the second Appeal for a non-custodial sentence since his Appeal was disposed with conclusively as sentence is a matter of fact.

That having stated that he regrets his action and he is remorseful, confirms his guilt therefore this Court cannot interfere with its own verdict and/or sentence unless it overlooked some material fact.

7. In have considered rival submissions of both the Applicant and Respondent.

8. The High Court has the jurisdiction to extend time for giving notice of intention to appeal from its Judgment or for making leave to appeal notwithstanding that the time for giving such notice or making such Appeal may have expired (vide Section 7 of the Appellate Jurisdiction Act).

9. The Applicant has attached a copy of the Memorandum of Appeal he intends to file which is an Appeal against sentence.

10. The Applicant was sentenced to suffer death by the trial Court. Aggrieved, he appealed to this Court, and by its Judgment dated the 19thday of November, 2018it substituted each Count with a sentence of ten (10) years imprisonmentthat were ordered to run concurrently. These sentences were to run from the date of conviction being the 8th August, 2016.

11. Following what is stipulated in the intended Memorandum of Appeal he is satisfied with the conviction but would wish to have the custodial sentence substituted with a non-custodial one.

12. As correctly submitted by the Respondent, Section 361(1)of the Criminal Procedure Codeprovides thus:

“(1) A party to an appeal from a subordinate court may, subject to subsection (8), appeal against a decision of the High Court in its appellate jurisdiction on a matter of law, and the Court of Appeal shall not hear an appeal under this section—

(a) on a matter of fact, and severity of sentence is a matter of fact; or

(b) against sentence, except where a sentence has been enhanced by the High Court, unless the subordinate court had no power under section 7 to pass that sentence.”

13. It will be futile to extend time as required since the Court of Appeal is not seized of jurisdiction to hear an Appeal on a matter of fact and severity of sentence.

14. In the premises the Application lacks merit. Accordingly, it is dismissed.

15. It is so ordered.

Dated, Signedand Deliveredat Kituithis 26thday of June,2019.

L. N. MUTENDE

JUDGE