[2022] KEHC 9996 (KLR)

Wanyonyi & another v Republic (Criminal Revision E268 of 2021) [2022] KEHC 9996 (KLR) (Crim) (5 May 2022) (Ruling)

Neutral citation: [2022] KEHC 9996 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Revision E268 of 2021

GL Nzioka, J

May 5, 2022

Between

Andrew Nyongesa Wanyonyi

1st Applicant

Fred Wafula Waminila

2nd Applicant

and

Republic

Respondent

Ruling

1. On June 18, 2021, the firm of; Lumatete Muchai & Company Advocates filed a Notice of Motion Application on behalf of; Andrew Nyongesa Wanyonyi (herein “the 1st Applicant”), dated, 16th June 2021, pursuant to the provision of Articles; 25(c), 50(2)(b)(p) and (7) and 53 of the Constitution of Kenya, 2010 (herein in the Constitution), section 364 of the Criminal Procedure Code(Cap75), Laws of Kenya (herein “the Code”) and sections 184, 190 and 191 of the Children Act, 2001.

2. The application is seeking for orders as here below reproduced;a.The Honourable Court be pleased to allow the Applicant’s application for revision of the sentence, re-sentencing in Milimani Chief Magistrate’s Court Criminal Miscellaneous Application No. 11 of 2019;b.The Honourable Court be pleased to set aside the entire sentence of; Hon. Senior Principle Magistrate E. Kimilu.

3. The application is supported by the affidavit of even date sworn by Emmanuel Walubengo, the Applicant’s advocate. He deposes that, the Applicant filed an application at the Chief Magistrates Court vide; Criminal Miscellaneous Application No. 11 of 2019, seeking for re-sentencing over the life imprisonment meted upon him.

4. That, upon hearing the application, the Court sentenced the Applicant to serve seventy (70) years in prison. However, he avers that, the Court failed to take into account the fact that, a jail sentence of seventy (70) years is as good as a life imprisonment.

5. Further, at the time of the trial in 1994, the Applicant was a minor and was “not supported to be sentenced, as though he was an adult”. That, the Court failed to inform him of his rights as a Minor, before meting out the sentence.

6. That, similarly, the Court failed to take into account, the Probation Officer’s Report, which was positive and various certificates of training he acquired while in custody and which he produced.

7. However, before the application was heard and determined, Fred Wafula Waminila (herein “the 2nd Applicant”), filed an undated Chamber Summons Application under the provisions of; Articles 22, 25, 50 and 165 of the Constitution, and section 364 of the Code and all other enabling provisions of the law.

8. The 2nd Applicant is similarly seeking for review of the sentence subject of re-sentencing meted upon him vide the subject Chief Magistrate Miscellaneous Criminal Application No. 11 of 2019 wherein, the life imprisonment sentence was reduced to a jail sentence of seventy (70) years.

9. The 2nd Applicant’s application is supported by his undated affidavit, in which he avers that, he was charged together with 1st Applicant, with the offence of; Robbery with violence contrary to; section 296(2) of the Penal Code, vide Chief Magistrate’s Criminal Case No. 3881 of 1994 at Milimani, Nairobi. That, they were convicted and sentenced to death.

10. However, being aggrieved by the decision, they filed an application referred to herein vide Miscellaneous Criminal Appeal No. 11 of 2019, seeking for re-sentence and were sentenced to serve seventy (70) years in prison, hence the current application for review.

11. Be that as it were, on February 2, 2022, the 2nd Applicant sought for leave to be enjoined in the 1st Applicant’s application, as the subject matter of both application is the same. The Learned Counsel Mr. Walubengo, for the 1st Applicant having no objection to the same, it was allowed. As such the ruling herein relates to the consolidated applications.

12. However, the application was opposed by the Respondent vide grounds of opposition dated; February 10, 2022, which states that;a.This Honourable Court lacks jurisdiction to entertain the application;b.The 1st Applicant is raising matters of fact which were already addressed by this Honourable Court of Appeal;c.The issue of the age of the 1st Applicant cannot arise at this stage as it is neither new nor compelling;d.The trial Court properly exercised its discretion in sentencing the Applicants;e.The sentence the subject of the instant application is legal considering the offence;f.The application lacks merit is an abuse of the Court process ad should accordingly be dismissed.

13. The application was disposed of by the parties filing submissions.The 1st Applicant reiterated that, when the offence was committed on or about September 1994, he was aged fifteen (15) years old having being born on; April 14, 1979, as evidenced by his National Identity Card and was therefore a minor as defined in the Children and Young Person Act (Repealed).

14. That he was sentenced as an adult and jailed alongside adults at Kamiti Maximum Prison against his rights as a child as provided for under section 16 of the Children and Young Persons Act (Repealed). Further during resentencing, the Court failed to take into account the law at the time and the period already served.

15. He submitted that, the sentence of death passed by the Trial Court was contrary to section 25(2) of thePenal Code (Cap 63) Laws of Kenya. He relied on the Criminal Appeal 363 of 2002; Peter Nakale Lugulai v Republic where the Court held that, by virtue of section 190(2) of the Children’s Act, it was wrong for the Hon trial Magistrate to pronounce a death sentence against the Appellant who was sixteen (16) years old at the time of his trial.

16. The 1st Applicant urged the Court to set him free as a retrial will prejudice him as he already served an illegal jail term and relied on Court of Appeal case Criminal Appeal No. 377 of 2012 Mwata Mwachinga Mwazige v Republic, where the Court stated that, re-trying and convicting the Appellant who had been in custody for six (6) years and was no longer a minor would prejudice him as some options under section 191 of the Children’s Act were not available to him and proceeded to quash the conviction.

17. The 2nd Applicant reiterated that, the sentence was manifestly harsh taking into account the Sentencing Policy Guidelines. He cited the case of; Macharia vs Republic ( 2003) 2 EA 559, where the Court outlined the principles on which an Appellate Court can interfere with the discretion of the trial Court. The Applicant further relied on the case of; Michael Kalewa vs Republic (2018) eKLR, where the Court stated that, mitigating factors should be taken into consideration, when passing a sentence.

18. He contended that he was remorseful as he had learnt his lessons and that he was a first offender. Furthermore, he had undertaken rehabilitation programs while in prison and has reformed during that period. Finally, the seventy (70) year sentence would deplete his life completely as he was arrested as a young man at twenty-seven (27) years old and is now fifty-five (55) years old having already served Twenty-eight (28) years of the sentence and relied on the case of Joseph Yusuf MimovRepublic. Kisumu Criminal Appeal No. 19 of 2010. He urged the Court to substitute the sentence of 70 years to time already served.

19. Having considered all the material placed before the Court, I find that, first and foremost, the consolidated application is brought underinter alia, the Constitutional provision of; Article 25, which deals with rights and fundamental freedoms, that cannot be limited. The subject provisions states as follows: -“Despite any other provision in this Constitution, the following rights and fundamental freedoms shall not be limited—(a)freedom from torture and cruel, inhuman or degrading treatment or punishment;(b)freedom from slavery or servitude;(c)the right to a fair trial; and(d)the right to an order of habeas corpus”

20. The relevance of the aforesaid provisions to the application was not canvassed and therefore why the same was cited is not clear to the court. Be that as it were, the Applicants have also invoked the provisions of; 364 of the Code, which states as follows;“(1)In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may—(a)in the case of a conviction, exercise any of the powers conferred on it as a Court of appeal by sections 354, 357 and 358, and may enhance the sentence;(b)in the case of any other order other than an order of acquittal, alter or reverse the order.(c)in proceedings under section 203 or 296(2) of the Panel Code, the Prevention of Terrorism Act, the Narcotic Drugs and Psychotropic Substances (Control) Act, the Prevention of Organized Crimes Act, the Proceeds of Crime and Anti-Money Laundering Act, the Sexual Offences Act and the Counter-Trafficking in Persons Act, where the subordinate court has granted bail to an accused person, and the Director of Public Prosecution has indicated his intention to apply for review of the order of the Court, the order of the subordinate court may be stayed for a period not exceeding fourteen days pending the filing of the application for review.(2)No order under this section shall be made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by an advocate in his own defence:Provided that this subsection shall not apply to an order made where a subordinate court has failed to pass a sentence which it was required to pass under the written law creating the offence concerned.(3)Where the sentence dealt with under this section has been passed by a subordinate court, the High Court shall not inflict a greater punishment for the offence which in the opinion of the High Court the accused has committed than might have been inflicted by the Court which imposed the sentence.(4)Nothing in this section shall be deemed to authorize the High Court to convert a finding of acquittal into one of conviction.(5)When an appeal lies from a finding, sentence or order, and no appeal is brought, no proceeding by way of revision shall be entertained at the insistence of the party who could have appealed.

21. It is noteworthy that, the aforesaid provision deal with the powers of the High Court upon hearing an application for revision. therefore, the provisions should be read together with the provisions under section 362 of the Code. The subject provisions states as follows: -“The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.

22. It is clear from the above provisions that, the Court will only exercise its revisionary powers where, the impugned sentence is either incorrect, illegal or improper.

23. Indeed, the objective of revision jurisdiction is to set right a patent defect or error of jurisdiction or law. This jurisdiction will only be involved where the decision under challenge is; grossly onerous, there is no compliance with the provisions of the law, or the finding reordered are based on no evidence, or material evidence is ignored or judicial discretion is exercised arbitrarily or perversely.

24. It therefore follows that, in exercise of revision powers, it is not the responsibility of the High Court to take into account the benefit of the evidence, it merely has to see if the provisions of the law have been properly adhered to by the Court whose order is the subject of the revision, as held in; Major S.S Khanna vs Brig F.J Dillon 1964 AIR 497, 1964 SCR (4) 409).

25. It is noteworthy therefore that, the revision jurisdiction does not allow the court to interfere and correct errors of facts, or of law when the order is within the jurisdiction of the subordinate court; even if the order is right or wrong, or in accordance with the law, unless it exercised its jurisdiction illegally or with material irregularity. Reference is made to the cases of; Wesley Kiptui Rutto & Another vs Republic [2017] eKLR), Republic vs Everlyne Wamuyu Ngumo (2016) eKLR, Public Prosecutiors vs Muhavi Bi Mond Jani & Another 1996 4 LRC 728, 743-5, DPP vs Samuel Kimuche.

26. To revert back to this matter I note that, a reading of the grounds in support to the application dated, 16th June, 2021, it is clear from the averments therein that, the Court allegedly erred in arriving at the sentence meted out. Therefore, they more of grounds of appeal than the revision.

27. Even then, even if the court were to consider the matter on merit, the question that arises is whether; the sentence imposed herein is; incorrect, illegal or improper. I find that, as the law stands now the penalty for the offence of; Robbery with violence is death.

28. That, although the Supreme Court of Kenya in; Francis Karioko Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae)Petition No 15 and 16 (Consolidated) eKLR 2015, declared the death sentence as unconstitutional, and allowed the convicts subject to the sentence to seek for re-sentencing, the Court has since clarified in, Francis Karioko Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2021] eKLR that re-sentencing applies to murder offences only.

29. Taking into account the sentence herein is already a result of re-sentencing and that, the Applicant have already benefited from Muruatetu case, this Court cannot re-sentence them or review the sentence again. Further, if the Court did, the sentence is likely to revert to death if this Court were to review it.

30. In view of the aforesaid, I find the custodial sentence imposed of; seventy (70) years is legal and lawful. Therefore, it cannot be a subject revision, maybe a subject of Appeal. In that regard, it is noteworthy that, the provision of; section 364(5) of Criminal Procedure Code states that, when an appeal lies from a finding, sentence or order and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who would have appealed.

31. The upshot of the aforesaid is that, I find no merit in the consolidated application for revision and I dismiss it.

DATED, DELIVERED VIRTUALLY AND SIGNED AT NAIROBI ON THIS 5TH DAY OF MAY, 2022. GRACE L. NZIOKAJUDGEIn the presence of;-1st and 2nd Applicant present at KamitiMs. Walubengo for the 2nd ApplicantMs. Oduor for the RespondentEdwin Ombuna – Court Assistant