[2022] KEHC 1225 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAROK

MISC. CRIMINAL APPLICATION NO. E033 OF 2021

(CORAM: F.M. GIKONYO J.)

(From the sentence in Narok CMCR No. 462 of 2015 by Hon. T.A. Sitation 31/03/2016,

Narok HCCRA NO. 11 OF 2017 BY Bwonwong’a J.on 17thmay 2017and re-sentencing

inNarok HCMISC. CRIM. APPL.NO. E001 of 2020by Gikonyo J. on 29/09/2021)

WILSON KUYONI...............................................................................................APPLICANT

-VERSUS-

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

RULING

Re-Sentencing based on the constitution and CPC

[1] In an undated application, the applicant is seeking for orders for a re-sentencing hearing pursuant to Article 22 (d),23(3)(f), 27,29(f) (50(2) (q), 159 (1)(2) (a) (d) 165(1) (3) (a), 259 of the Constitution and Section 333 (2) of the Criminal Procedure Code.

[2] The applicant sought to rely on the grounds set out in the application for review.

[3] The major grounds are: i) that he has spent 7 years in prison since his arrest and conviction of which one year was spent in remand pending trial; ii) he is 42 years and his wife and children depend on him; iii) he has been rehabilitated and ready to join the society. The testimonials pertaining his rehabilitated character were not, however, attached as alleged in the application.

[4] On 6th December 2021, Mr. Karanja, advocate for the respondent indicated to this court that he was yet to receive the application in this matter. He sought time to file written submissions. None was filed.

ANALYSIS AND DETERMINATION

[5] The application before me is for redress of a denial, violation or infringement of a right or fundamental freedom in the bill of rights. The fundamental provisions cited on re-sentencing are Article 22 (d), 23(3) (f), 27, 29(f) (50(2) (q), 159 (1) (2) (a) (d) 165(1) (3) (a), 259 of the Constitution. Is remedy merited?

Circumstances of case

[6] The applicant herein was charged with two counts Narok CMCR No. 462 of 2015;

a) count I: being in possession of wildlife trophy contrary to Section 95 of the Wild Life Conservation and Management Act no. 47 of 2013

b) Count II: Selling 1 piece of an elephant tusk contrary to Section 95 of the Wild Life Conservation and Management Act no. 47 of 2013

[7] The applicant was then sentenced by the trial court to pay a fine of Kshs. 20 million in default to serve life imprisonment in each count. The sentences were to run concurrently.

[8] He preferred an appeal to the High Court in Narok HCCRA NO. 11 OF 2017. The appeal was heard by this court (Bwonwong’a J). The sentence in count II was suspended. The appellate court considered that to impose a sentence in count II would amount to double punishment as the offence of selling amounts to ‘’splitting’ of charges on the part of the prosecution.

[9] As regards the sentence the appellate court found that the sentence imposed is the minimum prescribed by law in respect of count I. The sentence was confirmed. The appeal was dismissed on 17th May 2017.

[10] Two pertinent matters to ponder. One; the judge heard the appeal and upheld the life imprisonment. Two: the applicant was entitled to file an appeal to the Court of Appeal. It is not clear whether he filed one such appeal.

[11] He decided to seek resentencing under Muruatetu and the provisions of the constitution in HCMISC. CRIM. APPL.NO. E001 of 2020. This court considered his request and dismissed the said application on 29/09/2021.

[12] He has again come back to court seeking review of this court’s judgment delivered on 17/05/2017.

[13] From the application, it is notably one for review of this court’s judgment delivered on 17/05/2017. I do note however, that, the applicant has cleverly and cunningly evaded to mention about the decision on resentencing in HCMISC. CRIM. APPL.NO. E001 of 2020.

[14] Of jurisdiction to review own judgment; although the Supreme Court in HUSSEIN KHALID AND 16 OTHERS vs. AG & 2 OTHERS [2020] eKLRwas referring to review of its decisions, the scope of review of own judgment in a criminal case is generally quite restricted when it held:

[15] This Court has previously pronounced itself on the jurisdiction to review its decisions in the Outa case (Supra) where it stated the principles on review of a court’s own decisions when;

(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’.

[16]. This decision was arrived at after review of various Supreme Court decisions from different countries. The salient points were that the power of review is exercised sparingly because a trial has several implications once a judgment is delivered; litigation must come to an end; there is need for finality in court decisions; the Court is functus officio after delivery of decision sought to be reviewed; and that review should not substantially alter the decision sought to be reviewed. The review window is to be exercised sparing and only deserving cases have to be allowed. See Parliamentary Service Commission v Martin Nyaga Wambora & others [2018] eKLR, SC Application 8 of 2017.

[15] Accordingly, a court would review its sentence inter alia where the sentence is clearly illegal or unlawful or a nullity. But, claims that the sentence is harsh or excessive are reserved for the appellate court which will assess the decision of this court. Otherwise, an invitation to review own judgment in circumstances such as in this case, may, be stealth and contrived to usurp the jurisdiction of the Court of Appeal. Of significance is that this court considered an application for resentencing and dismissed it. The applicant, however, did not disclose this fact in his current application. It is, therefore, an abuse of court process for the applicant to come back to this court on an application for review of sentence.

[16] The applicant may, nonetheless, but subject to limitation of time, seek redress from the Court of Appeal.

[17] The upshot of the above is that, the application fails and is dismissed.

DATED, SIGNED AND DELIVERED AT NAROK THIS 21ST DAY OF MARCH 2022 THROUGH MICROSOFT TEAMS ONLINE APPLICATION

............................

F. M. GIKONYO

JUDGE

In the presence of:

1. The applicant

2. Karanja for the Republic

3. Kasaso CA