(Being an application for review of sentence of imprisonment arising from original conviction and sentence in Mombasa Magistrates Court Cr. Case No. 125 of 2013, I. Ruguru, SRM and Judgment in Mombasa HC Cr. Appeal No. 96 of 2014 Hon. Lady Justice A. Ongeri)
R U L I N G ON REVIEW OF SENTENCE
1. This is an application for review of sentence by the applicant Augustine Mburu by way of Notice of Motion undated and supported by an affidavit that is not commissioned or dated. The applicant seeks review of his sentence of 30 years imprisonment. The application is expressed to be brought under sections 6, 216 & 329, 333(2) and 364(1) of the Criminal Procedure Code (Cap. 75) Laws of Kenya (CPC).
2. The grounds in support of the application, together with his submissions all filed at the same time are that the applicant is currently serving a 30-year term of imprisonment at Shimo La Tewa Maximum security prison. He avers that he was arrested, convicted and sentenced to life imprisonment for the offence of defilement. His appeal to the High Court vide Mombasa HC CR. Appeal No. 96 of 2014 was dismissed on conviction and the sentence reduced to 30 years imprisonment. He has now served about 11 years imprisonment. His plea is that this sentence is harsh. That he is currently aged 68 years and has been diagnosed with hypertension and diabetes which are making his stay in prison very agonizing. He submits that he sincerely regrets the offence leading to his incarceration. That he has earned a favourable progressive report commending his conduct during his stay in prison. That he left behind a house wife and four children together with siblings and an elderly mother who are undergoing severe hardship due to his continued incarceration. That he has been adequately rehabilitated and reformed. That the High Court during the review of sentence application overlooked the crucial factor of his age. He is urging the court to consider the above mitigating circumstances
3. I have not had the benefit of perusing the record of the Magistrates Court where he was tried or the High Court file on appeal where his appeal on conviction was dismissed. I have no reason to doubt what the applicant states as the offence for which he was charged, convicted and sentenced as correct. However, the judgment in Mombasa Criminal Appeal 96 of 2014 Augustine Mburu v Republic [2016] KEHC 2031 (KLR) is available on the Kenyalaw website. From this decision, it shows that the applicant was tried, convicted and sentenced to life imprisonment for the offence of defilement contrary to section 8 (1) as read with section 8 (2) of the sexual offences Act No. 3 of 2006.
4. Therefore, this court is not incapacitated from considering and determining the application on the material available.
5. I have considered the application by the applicant and the grounds upon which it is based.
6. The information provided by the applicant is that he was convicted and sentenced to serve life imprisonment for the offence of defilement by I. Ruguru, SRM. He appealed the decision in High Court Criminal Appeal No. 96 of 2014 and his conviction was upheld. He then avers that the term of imprisonment was reduced to a determinate term of 30 years imprisonment.
7. However, he has conveniently left out the fact that the sentence was reduced as such through a subsequent application in Mombasa High Court Miscellaneous Criminal Application E114 of 2022 Mburu v Republic [2022] KEHC 16695 (KLR). The Ruling in that application was brief and in the following terms:
“Ruling
Augustine Mburu seeks by the application dated June 14, 2022 that his sentence be reviewed and substituted pursuant to the decision of Gikonyo, J in Narok High Court Miscellaneous Criminal Application No E014 of 2021, Baragoi Rotiken v Republic where life imprisonment for the offence of defilement contrary to section 8 (1) as read with section 8 (2) of the Sexual Offences Act was substituted with 25 years imprisonment.
His grounds are that the trial magistrate had limited freedom to consider his mitigation. He said that he had no criminal record and he was young and remorseful at the time of his sentence but his mitigation was not considered. In High Court Appeal No 96 of 2014, the applicant appealed against conviction and his appeal was dismissed. The applicant did give his mitigation which the trial court considered and sentenced him to life imprisonment.
In consideration of emerging jurisprudence on determinate sentence and in consideration of decisions in resentencing and substitution of life sentence with determinate sentences, this court finds that the appropriate sentence in consideration of mitigation given by the applicant is 30 years imprisonment to take effect from January 13, 2013 pursuant to section 333 (2) of the Criminal Procedure Code.
DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS, THIS 1ST DAY OF DECEMBER, 2022.
HON. LADY JUSTICE A. ONG’INJO
JUDGE
In the presence of: -
Ogwel- Court Assistant
Ms. Kambaga for Respondent
Applicant present in person”
8. Article 50(2) of the Constitution provides: -
“Every accused person has the right to a fair trial, which includes the right-
(a) …
(q) if convicted, to appeal to, or apply for review by, a higher Court as prescribed by the law.”
9. This court already considered the matter on review of sentence of the lower court and made orders thereon reviewing the indefinite sentence of life imprisonment to a determinate term of 30 years imprisonment. It cannot be that this court will keep on regurgitating the same issue in the same case over and over again. The sentence imposed is the mandatory sentence for the offence under the SOA and no review can be had on the same whatever the applicants mitigating circumstances, as outlined in his application and supporting affidavit, may be.
10. Secondly, this court is definitely not a higher court to which an application for review of that sentence can be made as provided for under Article 50(2)(q) of the Constitution.
11. In the circumstances, the sentence of life imprisonment imposed by the trial court being legal and the mandatory provided for by the law and the same having been reviewed by this court from an indefinite term to a definite term of 30 years imprisonment following recent jurisprudence from the Court of Appeal, I find no merit in the application and the same is dismissed. The applicant to serve his sentence as confirmed by this High Court on appeal.
12. Orders accordingly.
Ruling delivered, dated and signed in Open Court and Virtual Platform, Teams this 21st day of January 2025.
HON. ANDAYI W. F.
JUDGE
In the presence of: -
The Applicant in person from Shimo La Tewa prison.
M/s Valeri h/b Mr. Ngiri for the Respondent
Hud - Court Assistant
R U L I N G ON REVIEW OF SENTENCE
1. This is an application for review of sentence by the applicant Augustine Mburu by way of Notice of Motion undated and supported by an affidavit that is not commissioned or dated. The applicant seeks review of his sentence of 30 years imprisonment. The application is expressed to be brought under sections 6, 216 & 329, 333(2) and 364(1) of the Criminal Procedure Code (Cap. 75) Laws of Kenya (CPC).
2. The grounds in support of the application, together with his submissions all filed at the same time are that the applicant is currently serving a 30-year term of imprisonment at Shimo La Tewa Maximum security prison. He avers that he was arrested, convicted and sentenced to life imprisonment for the offence of defilement. His appeal to the High Court vide Mombasa HC CR. Appeal No. 96 of 2014 was dismissed on conviction and the sentence reduced to 30 years imprisonment. He has now served about 11 years imprisonment. His plea is that this sentence is harsh. That he is currently aged 68 years and has been diagnosed with hypertension and diabetes which are making his stay in prison very agonizing. He submits that he sincerely regrets the offence leading to his incarceration. That he has earned a favourable progressive report commending his conduct during his stay in prison. That he left behind a house wife and four children together with siblings and an elderly mother who are undergoing severe hardship due to his continued incarceration. That he has been adequately rehabilitated and reformed. That the High Court during the review of sentence application overlooked the crucial factor of his age. He is urging the court to consider the above mitigating circumstances
3. I have not had the benefit of perusing the record of the Magistrates Court where he was tried or the High Court file on appeal where his appeal on conviction was dismissed. I have no reason to doubt what the applicant states as the offence for which he was charged, convicted and sentenced as correct. However, the judgment in Mombasa Criminal Appeal 96 of 2014 Augustine Mburu v Republic [2016] KEHC 2031 (KLR) is available on the Kenyalaw website. From this decision, it shows that the applicant was tried, convicted and sentenced to life imprisonment for the offence of defilement contrary to section 8 (1) as read with section 8 (2) of the sexual offences Act No. 3 of 2006.
4. Therefore, this court is not incapacitated from considering and determining the application on the material available.
5. I have considered the application by the applicant and the grounds upon which it is based.
6. The information provided by the applicant is that he was convicted and sentenced to serve life imprisonment for the offence of defilement by I. Ruguru, SRM. He appealed the decision in High Court Criminal Appeal No. 96 of 2014 and his conviction was upheld. He then avers that the term of imprisonment was reduced to a determinate term of 30 years imprisonment.
7. However, he has conveniently left out the fact that the sentence was reduced as such through a subsequent application in Mombasa High Court Miscellaneous Criminal Application E114 of 2022 Mburu v Republic [2022] KEHC 16695 (KLR). The Ruling in that application was brief and in the following terms:
“Ruling
Augustine Mburu seeks by the application dated June 14, 2022 that his sentence be reviewed and substituted pursuant to the decision of Gikonyo, J in Narok High Court Miscellaneous Criminal Application No E014 of 2021, Baragoi Rotiken v Republic where life imprisonment for the offence of defilement contrary to section 8 (1) as read with section 8 (2) of the Sexual Offences Act was substituted with 25 years imprisonment.
His grounds are that the trial magistrate had limited freedom to consider his mitigation. He said that he had no criminal record and he was young and remorseful at the time of his sentence but his mitigation was not considered. In High Court Appeal No 96 of 2014, the applicant appealed against conviction and his appeal was dismissed. The applicant did give his mitigation which the trial court considered and sentenced him to life imprisonment.
In consideration of emerging jurisprudence on determinate sentence and in consideration of decisions in resentencing and substitution of life sentence with determinate sentences, this court finds that the appropriate sentence in consideration of mitigation given by the applicant is 30 years imprisonment to take effect from January 13, 2013 pursuant to section 333 (2) of the Criminal Procedure Code.
DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS, THIS 1ST DAY OF DECEMBER, 2022.
HON. LADY JUSTICE A. ONG’INJO
JUDGE
In the presence of: -
Ogwel- Court Assistant
Ms. Kambaga for Respondent
Applicant present in person”
8. Article 50(2) of the Constitution provides: -
“Every accused person has the right to a fair trial, which includes the right-
(a) …
(q) if convicted, to appeal to, or apply for review by, a higher Court as prescribed by the law.”
9. This court already considered the matter on review of sentence of the lower court and made orders thereon reviewing the indefinite sentence of life imprisonment to a determinate term of 30 years imprisonment. It cannot be that this court will keep on regurgitating the same issue in the same case over and over again. The sentence imposed is the mandatory sentence for the offence under the SOA and no review can be had on the same whatever the applicants mitigating circumstances, as outlined in his application and supporting affidavit, may be.
10. Secondly, this court is definitely not a higher court to which an application for review of that sentence can be made as provided for under Article 50(2)(q) of the Constitution.
11. In the circumstances, the sentence of life imprisonment imposed by the trial court being legal and the mandatory provided for by the law and the same having been reviewed by this court from an indefinite term to a definite term of 30 years imprisonment following recent jurisprudence from the Court of Appeal, I find no merit in the application and the same is dismissed. The applicant to serve his sentence as confirmed by this High Court on appeal.
12. Orders accordingly.
Ruling delivered, dated and signed in Open Court and Virtual Platform, Teams this 21st day of January 2025.
HON. ANDAYI W. F.
JUDGE
In the presence of: -
The Applicant in person from Shimo La Tewa prison.
M/s Valeri h/b Mr. Ngiri for the Respondent
Hud - Court Assistant