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JudgmentALLAN GRAY VS The Republic7 min read

ALLAN GRAY VS The Republic

High Court at Mombasa High Court · · Wendy Micheni

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

CRIMINAL REVISION NO. E311 OF 2024

ALLAN GRAY……………….…………………………….……. APPLICANT

VERSUS

REPUBLIC ………………………………………………..… RESPONDENT

(ORIGINATING FROM SEXUAL OFFENCE NUMBER 3 OF 2019 IN THE CHIEF MAGISTRATE’S COURT AT SHANZU (HON. D. ODHIAMBO S.R.M)

RULING

Preliminaries

  1. Before this Court is the Notice of Motion application  that was lodged on 7th October, 2024 which sought  the review of the Applicant’s 20 years’ imprisonment.
  2. The Applicant is a Kenyan citizen currently serving 20 years sentence after being charged and convicted with the offence of Defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006.
  3. The Applicant had exercised his right to appeal and lodged an appeal at the High Court at Mombasa vide HCCRA No. E008 of 2022 which appeal was dismissed in 2022. The Applicant sought for the revision of his sentence on the grounds that he was entitled to benefit from the least severe of the prescribed punishment under Article 50(2)(p) of the Constitution  and he begged the Court for a second chance by considering his mitigation factors. He further averred that was 65 years old sickly and required constant treatment at Coast General Teaching and Referral Hospital. The nature of his sickness required special diet which he had not been able to attend to hospital visits as directed by the Hospital.
  4. A sentence review report dated 26th October, 2024 prepared by one Mr. Stephen Muthoka indicated that the Applicant was arrested in 2021 charged, convicted and sentenced to 20 years imprisonment which he had served at Shimo Maximum Prison for about 4 years. The family had reported that the Applicant posed no security threat and that he may not face any security risks as they may put in place empowerment plans as he sought to stabilize his life and establish his new life from the toxic relationship with his second wife whom resulted to the case he was convicted.
  5. The friends have already established a job for him with Mombasa Cement in which they prefer him posted to this Athi River branch or Nairobi branch away from the place in which he was arrested, charged and convicted. According to the officer, the inmate was remorseful and regretted his actions, he prayed for mercy from this Honourable Court.
  6. The officer noted that the victims in this matter were not traced for interview, however with examination of the facts of the case and the time since the offence was first reported, the primary victim is currently and adult and therefore very minimal chances of committing similar offences or even threatening the victims.
  7. The officer recommended that the inmate is suitable for a non – custodial sentence and/ or review of the sentence meted by the trial court. The recommended a 3-year probation sentence during which he would continue to receive his medical care and a constant follow up to ensure rehabilitation and supervision.

Analysis and Determination

  1. Considering the pleadings and submissions of the parties, it is my view that the main issue for determination is whether the undated application filed is merited. The revisionary power of the High Court draws upon article 167 of the Constitution. The article provides: -

(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.

  1. In my considered view, Section 362 and 364 of the Criminal Procedure Code, being existing law, should be seen and interpreted in light of the overall purpose and objective of revisionary power cast in article 165(6) & (7) of the Constitution, that is …. to ensure the fair administration of justice…. Some commentators see this overarching objective to have widened the scope of exercise of revisionary power by the High Court.
  2. Section 364 of the Criminal Procedure Code, provides 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 section 354, 357 and 358, and may enhance sentence: -

(b) in the case of any other order than an order of acquittal, alter or reverse the order.”

  1. In the present application, the Applicant challenges the exercise of judicial discretion by the trial court. This court can only interfere with such exercise of sentencing discretion in circumstances that are now settled in law. The Court of Appeal in Ahmad Abolfathi Mohammed & Another – Versus - Republic Criminal Appeal No. 135 of 2016 (unreported) held at Page 25 thus:

“As what is challenged in this appeal regarding sentence is essentially the exercise of discretion, as a principle this Court will normally not interfere with exercise of discretion by the court appealed from unless it is demonstrated that the court acted on wrong principle; ignored material factors; took into account irrelevant considerations; or on the whole that the sentence is manifestly excessive. In Bernard Kimani Gacheru v. Republic, Cr App No.188 of 2000 this Court stated thus:

“It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account, some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, any one of the matters already stated is shown to exist.”

  1. The court is also aware that the dust is yet to settle on the sentencing in sexual offences. The Supreme Court of Kenya recently did speak in a very firm voice to the effect that the   minimum sentence does not take away the court’s discretion. This was in the case of Republic – Versus - Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR). The Apex court held verbatim as follows;

56.Mandatory sentences leave the trial court with absolutely no discretion such that upon conviction, the singular sentence is already prescribed by law. Minimum sentences however set the floor rather than the ceiling when it comes to sentences. What is prescribed is the least severe sentence a court can issue, leaving it open to the discretion of the courts to impose a harsher sentence. In fact, to use the words mandatory and minimum together convolutes the express different definitions given to each of the two words. Although, the term ‘mandatory minimum’ can be found used in different jurisdictions, including the United States, and in a number of academic articles, it is not applicable as a legally recognised term in Kenya. In this country, a mandatory sentence and minimum sentence can neither be used interchangeably nor in similar circumstances as they refer to two very different set of meanings and circumstances……….

66.We must also reaffirm that, although sentencing is an exercise of judicial discretion, it is Parliament and not the Judiciary that sets the parameters of sentencing for each crime in statute. As such, striking down a sentence provided for in Statute, must be based not only on evidence and sound legal principles but on an in-depth consideration of public interest and the principles of public law that informed the making of that specific law. A judicial decision of that nature cannot be based on private opinions, sentiments, sympathy or benevolence. It ought not to be arbitrary, whimsical or capricious. However, where a sentence is set in Statute, the Legislature has already determined the course, unless it is declared unconstitutional, based on sound principles and clear guidelines, upon which the Legislature should then act. Suffice to say, where Parliament enacts legislation, the Judicial arm should adjudicate disputes based on the provisions of the law.

  1. In the present application, it was clear to the court that indeed the trial court did not take into account the period that the Applicant was in remand custody when it sentenced him to serve the custodial sentence. This court has perused the trial court’s notes when it sentenced the Applicant. Indeed the period spent in custody was not considered.  Under section 3880f the cpc, that is mandatory
  2. The Applicant has pleaded that he is aging and that he needed  specialized medication which he medication this he is  not able to enjoy while in custody.  I note that he is of advanced age and frail health and the re sentencing report shows that he has reformed.
  3. The purpose of the incarceration has been achieved and keeping frail old men in custody is at times punitive to the institution and fellow in mates.
  4. Accordingly pursuant to the on going de congestion exercise, I will give the applicant a chance and revise his sentence to the time already spent and an addition probation sentence of 3 years
  5. He is warned to adhere to the  probation terms and be of good conduct.
  6. It is so ordered.

IT IS SO ORDERED ACORDINGLY.

RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS 28th DAY OF  November 2024


HON. LADY JUSTICE W. M. KAGENDO

(JUDGE)

HIGH COURT OF KENYA AT MOMBASA

(CRIMINAL DIVISION)

In the presence of:

M/s. Bebora, Court Assistant;

Ms. Maina State Counsel for the Respondent

Applicant present in person

    ALLAN GRAY VS The Republic ALLAN GRAY VS The Republic