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JudgmentCHONGA MLAE KWESHA VS State Law6 min read

CHONGA MLAE KWESHA VS State Law

High Court at Mombasa High Court · · Wendy Micheni


(ORIGINATING FROM CRIMINAL CASE NO. 1711 OF 2004 OF THE CHIEF MAGISTRATE’S COURT AT MOMBASA)


Introduction

  1. This Honourable Court is called to determine the Notice of Motion application dated 13th March, 2024 by the Applicant who sought the following orders:-
  2. Spent
  3. THAT, the Honourable Court be pleased to review LIFE sentence imposed by the Trial Court and grant me a more lenient sentence informed by my mitigation and the unique facts and circumstances of my case pursuant to Article 50(2)(p)(q) of the Constitutional of Kenya.
  4. THAT, the period spent in remand custody be computed into the eventual sentence to be awarded pursuant to the provisions of section 333(2) of the Criminal Procedure Code and also pursuant to Jona & 87 others v Kenya Prison Service &2 others (Petition 15 of 2020) [2021] KEHC 457 (KLR).
  5. THAT, the Honourable Court be pleased to grant him probation orders if his circumstances so fit.
  6. ANY OTHER order that the Hon. Court deems fit to give in the interest of justice.
  7. THAT, further grounds shall be adduced in the sworn supporting affidavit of CHONGA MLAE KWESHA among other grounds to be adduced during the hearing of this application.
  8. The Application is supported by the applicant’s affidavit wherein he avers that:-
  9. The Applicant was charged and convicted for the offence of defilement contrary to section 145(1) of the penal code in Cr. Case No. 1711 of 2004 at Mombasa CM's Court and sentenced to Life imprisonment.
  10. The Applicant lodged an appeal to the High Court at Mombasa vide H.C.CR.A No 60 of 2018 but the same was dismissed in its entirety; conviction and sentence affirmed.
  11. The Applicant was sentenced to a mandatory sentence as prescribed by Section 145(1)of the Penal Code which was later repealed by the Sexual Offences Act without consideration of his mitigation or the unique facts and circumstances of his case.
  12. The High Court in Petition No 97 of 2021 Edwin Wachira & 9 Others vs Republic as consolidated with Petition No 88 of 2021, 98 of 2021 and 57 of 2021 at Mombasa High Court declared the application of minimum mandatory sentences as being unconstitutional and granted orders that those affected may petition the High Court for resentencing and thus the reason for this application.
  13. The Court of Appeal in Manyeso v Republic (Criminal Appeal 12 of 2021)[2023] KECA 827 (KLR) (7th July 2023) (Judgment) declared LIFE sentence as being unconstitutional.
  14. This decision of the Court of Appeal cited in paragraph v above has been embraced by the High Court in the case of Boniface Keya vs. Republic Misc. Criminal Application No. E007 of 2023 at Kapenguria.
  15. The Court of Appeal’s decision in Mwangi v Republic (Criminal Appeal 84 of 2015) 022] KECA 1106 (KLR) (7th October 2022) is relevant in the present case.

Analysis and Determination

  1. I find that the application invokes the revisional jurisdiction of this court which gives the court powers, in appropriate cases, to review and vary any orders, decision or sentence passed by the trial court if the court was satisfied that the impugned order, decision or sentence was illegal or was a product of an error or impropriety on the part of the trial court.  If the court was so satisfied, the law mandated it to make appropriate orders to correct the impugned order, decision or sentence and align it with the law.  The above is the import of Section 362 as read with Section 364 of the Criminal Procedure Code.
  2. In this case, the Applicant has maintained that the trial court erred by sentensing him to a mandatory sentence as prescribed by Section 145(1) of the Penal Code which was later repealed by the Sexual Offences Act without consideration of his mitigation or the unique facts and circumstances of his case.
  3. The High Court in Petition No 97 of 2021 Edwin Wachira & 9 Others vs Republic as consolidated with Petition No 88 of 2021, 98 of 2021 and 57 of 2021 at Mombasa High Court declared the application of minimum mandatory sentences as being unconstitutional and granted orders that those affected may petition the High Court for resentencing and thus the reason for this application.
  4. I have looked at the trial court’s record and I confirm that indeed, the learned trial magistrate did not indicate on the record that he had considered the time the applicant was in lawful custody during the trial. The learned trial magistrate thus contravened the proviso to Section 333 (2) of the Criminal Procedure Code which is stated in mandatory terms.  Section 333 (2) is in the following terms:

“Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.

Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.”


. In Dismas Wafula Kilwake -  Versus - Republic [2018] eKLR, the Court of Appeal set out the factors to be considered in sentencing under Sexual Offences Act. It observed as follows:-

[W]e hold that the provisions of section 8 of the Sexual Offences Act must be interpreted so as not to take away the discretion of the court in sentencing. Those provisions are indicative of the seriousness with which the Legislature and the society take the offence of defilement. In appropriate cases therefore, the court, freely exercising its discretion in sentencing, should be able to impose any of the sentences prescribed, if the circumstances of the case so demand. On the other hand, the court cannot be constrained by section 8 to impose the provided sentences if the circumstances do not demand it. The argument that mandatory sentences are justified because sometimes courts impose unreasonable or lenient sentences which do not deter commission of the particular offences is not convincing, granted the express right of appeal or revision available in the event of arbitrary or unreasonable exercise of discretion in sentencing.

  1. The Applicant was charged and convicted of the offence of defilement, the issue of reviewing the sentence that was meted upon him as was set out in the case of Francis Karioko Muruatetu & Another vs Republic did not arise herein and this court could not review the sentence  of twenty (20) years that was imposed on him by Majanja J in place of the sentence of life imprisonment that was imposed by the Trial Court.
  2. Having said so, this court could still address its mind to Section 333 (2) of the Criminal Procedure Code Cap 75 (Laws of Kenya) as in the case of Ahamad Abolfathi Mohammed & Another – Versus - Republic [2018] eKLR, the Court of Appeal reiterated that where a convicted person had spent time in custody, that period had to be taken into account while computing his sentence.

Conclusion and Disposition

  1. In the instant case, I am of the conceded view that the sentence of life imprisonment though seen as punitive and excessive from an eye of the Applicant, it i as legal and valid sentence for the offence.  My strong feeling is that even after considering  the submissions on mitigation, there would be no justification to review the sentence downwards. .  Consequently, the application is dismissed..

IT IS SO ORDERED ACORDINGLY.

RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS ……19th.…………DAY OF …………December……………..…….., 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;

………………………………………….…Applicant

    CHONGA MLAE KWESHA VS State Law CHONGA MLAE KWESHA VS State Law