[2022] KEHC 11757 (KLR)

Wambua v Republic (Criminal Petition E004 of 2021) [2022] KEHC 11757 (KLR) (4 May 2022) (Judgment)

Neutral citation: [2022] KEHC 11757 (KLR)

Republic of Kenya

In the High Court at Machakos

Criminal Petition E004 of 2021

MW Muigai, J

May 4, 2022

IN THE MATTER OF: ARTICLE 21(1) (3), 22(1), 47(1) 27(1) 165(3) (b) (d) (ii) OF THE CONSTITUTION OF KENYAANDIN THE MATTER OF: OFFENCE OF RAPE CONTRARY TO SECTION 3 (1) (a) (b) (3) OF THE SEXUAL OFFENCES ACT, NO 3 OF 2006ANDIN THE MATTER OF: SUPREME COURT DECISION OF FRANCIS KARIOKO MURUATETU AND ANOTHER PETITION NO 15 OF 2015, JOSEPH KABERIA KAHINGA AND 11 OTHERS EKLR, JUDIARY CRIMINAL PROCEDURE BENCH BOOK 2018ANDIN THE MATTER OF: TITUS NGAMAU MUSILA ALIAS KATITU, CRIMINAL CASE NO. 78 OF 2014 QUOTING FROM THE CASE OF SINGH VS STATE OF PUNJAB (1978)ANDIN THE MATTER OF : HIGH COURT CRIMINAL APPEAL NO 8 OF 2019 AT MACHAKOS DELIVERED ON 28TH JANUARY 2020 BY JUSTICE D.K KEMEIANDIN THE MATTER OF: CRIMINAL CASE NO 15 OF 2017, BY HON A. LOROT (SPM) ON 23RD NOVEMBER 2020 AT MACHAKOS LAW COURT

Between

Joseph Wambua

Applicant

and

Republic

Respondent

Judgment

Court record 1. The applicant was charged with rape contrary to section 3(1) (a) (b) (3) of the Sexual Offences Act, No 3 of 2006 and in the alternative, he was charged with indecent act with an adult contrary to section 11(a) of the Sexual Offences Act. In the second count, the applicant was charged with robbery with violence contrary to section 296(2) of the Penal Code in Machakos Criminal Case number 15 of 2017 Republic vs Joshua Wambua before Hon A. Lorot, Senior Principal Magistrate.

2. The applicant was found guilty of rape and robbery with violence and was sentenced to serve thirty (30) years imprisonment in each count and the sentences were to run concurrently.

High Court judgment 3. Being aggrieved by this judgement, the applicant appealed to the High Court Criminal Case number 8 of 2019 Joshua Wambua vs Republic.

4. Hon Justice Kemei heard and determined the appeal and on January 28, 2020 he dismissed the appeal and upheld the conviction and sentence.

Petition 5. The applicant has approached this court vide an undated petition filed on January 14, 2021 seeking the following prayers;a)The court implements the Supreme Court decision and reviews his sentence accordingly following the factors laid out in Evans Wanjala Wanyonyi vs Republic [2019] eKLR, Appeal Number 312 of 2015, Eldoretb)The court considers section 333 (2) of the Criminal Procedure code and the Court of Appeal Decision in Ahamad Abolfathi Mohammed and Another vs Republic (2018) eKLRc)The court decides taking into consideration any aggravating and mitigating factors and gives him a more lenient sentence.d)Any other orders that the court may deem appropriate in the circumstances.

6. The application is supported by an undated affidavit filed on January 14, 2021 sworn by Joseph Wambua in which he deposed that the time spent in custody prior to conviction was not considered in sentencing.

7. He deposed that he has engaged in rehabilitative programs which will help him reintegrate with the society. Further he submits that the law on remission contravenes article 27(1) and 47 of the Constitution.

8. He citedYawa Nyale vs Republic[2008] eKLR that the case of Francis Karioko Muruatetu and another Petition No 15 OF 2015, was new and compelling reason within the meaning of article 50 (6) of CoK 2010

9. He cited the case of Evans Wanjala Wanyonyi vs Republic [2019] eKLR, Appeal Number 312 of 2015, Eldoret which he asked the court to consider in his application.

Applicant’s Submissions 10. The Applicant filed submissions on December 15, 2021, he submitted on three major grounds;a)The applicant invoked the constitutional jurisdiction of the high Court for the violation of the appellant’s rights under article 50 (2) ( c ) (j) & 25 ( c) of CoK 2010. There was failure by the trial court to ensure that the petitioner was provided with the evidence that the prosecution relied on. On appeal, the high court ignored the said issue. To fortify this position, the applicant relied on the case of Simon Githaka Malombe vs Republic (2015) eKLR, the C A stated in Juma vs Republic [2007] E A 461 reasoned;We hold that the state is obliged to provide an accused person with copies of Witness statements and relevant documents. This is included in the package of giving and affording adequate facilities to a person charged with a criminal offence…..b)On the issue of fair trial, he submitted that it was a right guaranteed by the Constitution and cited the cases of Simon Ndichu Kahoro vs Republic [2016] eKLR, Rattiram vs State of MP [2012] 4 SCC 516, Thomas Patrick Gilbert Cholmondley vs R[2008] eKLR.c)On jurisdiction, he submitted that the court had original and unlimited jurisdiction to determine this matter involving rights protected under the Bill of Rights in breach of fair trial in his matter. He relied on articles 22 & 23 as read with article 165 CoK 2010. He cited the case of Joseph Kaberia Kainga and 11 otherswhere a 3 judge bench of the High Court declared mandatory death sentence as unconstitutional on application by 12 inmates who exhausted their chances of appeal and Francis MuruatetuNo 15 of 2015 where the death sentence was declared unconstitutional. Further, he submitted that the sentence was harsh and perhaps the circumstances of the case were not taken into account.

Respondent submissions 11. The respondent filed submissions dated February 8, 2022 in which relied on the case of Telkom Kenya Limited v John Ochanda (Suing On His Own Behalf and on Behalf Of 996 Former Employees of Telkom Kenya Limited) [2014] eKLR and Raila Odinga & 5 Others v Independent Electoral and Boundaries commission & 3 others[2013] eKLR submitted that the applicant had not exhausted his right to appeal to the Court of Appeal and this court was functus officio since it heard and substantively adjudicated the appeal. Counsel urged the court to dismiss the application in its entirety.

Analysis and Determination 12. I have considered the application and the submissions by parties and I find that the issues for determination are the issue of revision of sentence under Article 50 (2) (p) & (q) of CoK 2010; resentencing and computation of sentence by Sections 333(2) of Criminal Procedure Code.d)Article 165 of the Constitution of Kenya 2010 provides in part the High Court jurisdiction;(3)Subject to clause (5), the High Court shall have—(a)unlimited original jurisdiction in criminal and civil matters;….(e)any other jurisdiction, original or appellate, conferred on it by legislation….………..(6)The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.(7)For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.

13. As was stated by the High Court of Malaysia in Public Prosecutor vs Muhari bin Mohd Jani and Another [1996] 4 LRC 728 at 734, 735:“…..The object of revisionary powers of the High Court is to confer upon the High Court a kind of “paternal or supervisory jurisdiction” in order to correct or prevent a miscarriage of justice. In a revision the main question to be considered is whether substantial justice has been done or will be done and whether any order made by the lower court should be interfered with in the interest of justice…”

14. The Court has made the following observations;(1)First, this Court upheld the sentence that was meted by the Trial Magistrate hence this court is functus officio. Telkom Kenya Limited vs John Ochanda (Suing on his own behalf and on behalf of 996 former employees of Telkom Kenya Ltd [2014] eKLR Githinji, Karanja & Kiage JJA observed as follows;Functus officio is an enduring principle of law that prevents the reopening of a matter before a Court that rendered the final decision thereon. It is a doctrine that has been recognized in the Common Law tradition from as long as the latter part of the 19th Century.The proper forum to ventilate the issue of the sentence at this point is the Court of Appeal.In the case ofJoseph Maburu alias Ayub vs Republic [2019] eKLR the Court stated that:-““Sentencing is a judicial exercise. Once a judge or a judicial officer has pronounced a sentence, he/she becomes functus officio. If the sentence is illegal or inappropriate the only court which can address it is the appellate one. Black’s Law Dictionary Tenth (10th) Edition describes defines sentence as:The judgment that a court formally pronounces after finding a criminal defendant guilty; the punishment imposed on a criminal wrongdoer.Remitting a matter to the trial court which had become functus officio after sentencing flies in the face of the doctrine of functus officio. It amounts to asking the trial court to clothe itself with the jurisdiction of an appellate court. This is an illegality.”(2)Secondly, the Supreme Court on July 6, 2021 in Francis Karioko Muruatetu & another vs Republic; Katiba Institute & 5 others (Amicus Curiae) [2021] eKLR (hereinafter called Muruatetu Case 2) directed that the decision of Muruatetu and the Sentencing Guidelines apply only in respect to sentences of murder under Sections 203 and 204 of the Penal Code. It follows therefore that the Applicant charged with offence of defilement will not benefit from the guidelines in Muruatetu case.(3)When the Appellant filed his 1st Appeal in this court it was vide Judgment delivered on January 28, 2020 by Hon Justice D Kemei, who dismissed the appeal, upheld both conviction and sentence, thereby the Applicant exhausted the Appeal process before the High Court. The judgment of the High Court Criminal Appeal No 8 of 2019 is of a Court of equal, similar, competent and concurrent jurisdiction as this Court. Therefore, the Petition herein is not a question that can be handled by this Court.Article 50(2) & (q) of the Constitution prescribes; if convicted, to appeal to, or apply for review by, a higher Court as prescribed by law. Therefore the issue of resentencing was dealt with by this Court and therefore cannot be reopened again but is the subject of an appeal to Court of Appeal.

Computation of Sentence under Section 332 (2) CPC 15. The Trial Court delivered Judgment on November 23, 2018; and sentenced the Applicant for 30 years for both offences to run concurrently. The High Court heard the appeal and delivered judgment in Criminal Appeal No 8 of 2019 and upheld conviction and sentence on January 28, 2020. The Original Court File of the Trial Court was/is availed and the Appeal Court file is also availed and the Court perused both Court files.

16. I note that the Trial Court did not refer to the period spent in custody as part of the 30 years sentence. I also note that although the Applicant filed appeal, the Appellant did not raise computation of sentence as an issue for determination in the Appeal before the High Court.

17. This Court finds that computation of the sentence of 30 years to include the time spent in custody is not resentencing or interference, amendment or sitting on appeal of the judgment delivered on appeal as compliance with Section 333 (2) CPC was not raised during the appeal and is mandatory legal requirement.

18. The Charge-sheet in the Original Court file confirms the Applicant was arraigned in Court on May 25, 2017 and although he was granted bond he remained in custody during trial until judgment was delivered on November 23, 2018 and sentenced on the same date.

19. Therefore, the 18 months the Applicant was in custody shall be considered in computing the sentence of 30 years.

20. The rest of the issues raised in the instant petition of fair hearing and alleged lack of provision of Witness statements and relevant documents were raised during and hearing of the appeal and determination by the High Court and this Court is functus officio on those issues, the Applicant cannot legally have another bite at the cherry, recourse of the rest of the issues should be in Court of Appeal.

Disposition1. This Court is functus officio of the petition raised by the Applicant and should apply Article 50(2) & (q) of the Constitution and appeal to Court of Appeal.2. The resentencing and alleged lack of fair trial were heard and determined in Criminal Appeal No 8 of 2019 by High Court.3. The issue of computation of sentence under Section 333(2) CPC is granted as both Court files confirm that the computation of sentence was not raised in the Appeal and was not factored during Trial Court’s sentencing. The 18 months the Applicant was in custody during trial shall be considered in computing 30 years sentence w e f May 24, 2017 and thereafter remission may be considered under Section 46 of Prison Act.It is so ordered.

DELIVERED SIGNED & DATED IN OPEN COURT ON 4TH MAY 2022 (VIRTUAL CONFERENCE)M W MUIGAIJUDGE