(Being an application for commutation of the sentence to probation arising from original conviction and sentence in Mombasa Magistrates Court Cr. Case No. 2061 of 2013 and Judgment in Mombasa HC Cr. Appeal No. 71 of 2019 delivered on 17th June 2021 Hon. Lady Justice A. Ong’ijo)
R U L I N G ON REVIEW OF SENTENCE
1. This is an application by for review of sentence by the applicant Felix Munguti Kasimo by way of Notice of Motion undated and supported by an affidavit that is not commissioned or dated. The applicant seeks commutation of his sentence of imprisonment so as to be placed on probation for the remainder of the prison term. The application is brought under section 364 of the Criminal Procedure Code (Cap. 75) Laws of Kenya (CPC).
2. The grounds in support of the application are that the applicant is currently serving a 10-year term of imprisonment at Shimo La Tewa maximum security prison. Although he indicates that the sentence was for the offence of defilement the record from the Magistrates Court and the High Court on appeal shows that he was convicted and sentenced for the offence of sexual assault contrary to section 5(1)(a)(i) as read with section 5(2) of the Sexual Offences Act (Cap. 63A) Laws of Kenya (SOA). He was initially sentenced to serve 15 years imprisonment by the trial court.
3. He appealed in High Court Criminal Appeal No. 71 of 2019 and his conviction was upheld but the sentence reduced to 10 years imprisonment which is the minimum sentence for the offence under the SOA. He now prays for commutation of sentence to probation.
4. Section 362 of the Criminal Procedure Code provides for the supervisory power of the High Court over proceedings before the magistrates courts 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.
5. Section 364 CPC cited by the applicant in this matter, provides for the powers of the High Court on revision thus:
(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) …
6. I have considered the proceedings on sentencing by the trial court as well as the offence charged and I am unable to find any incorrectness, illegality or impropriety in the sentence passed against the applicant and neither do I find any irregularity in the proceedings.
7. In any case, this court already considered the matter on appeal and made orders thereon which included a reduction in the sentence. It cannot be that the court can go back to consider the incorrectness, illegality or impropriety in the sentence of the trial court at this point. That is presumed to have been considered at the time of the appeal.
8. I have considered the sentence review report provided by the Probation and Aftercare Service department and I note that it recommends that the applicant can benefit from non-custodial sentence by way of a probation order for the remaining term of his sentence in view of his advanced age, being 51 years and prevailing healthy status. That is an indication that he is in good health especially since there is no contrary indication in the report. However, the views of the victim are not available in the report as she is said to have relocated from her residence and could not be traced.
9. The offence for which the applicant was convicted carries a minimum term of imprisonment which this court has already imposed, thereby reducing the initial sentence imposed by the trial court. This court had the option to enhance the sentence to life imprisonment as provided for under section 5(2) of the SOA given the very young age of the victim at 5 years but opted to reduce the same to the minimum provided by law. This court cannot sit to revise its own orders. There is no ground upon which this court can commute the sentence to probation particularly, the sentence having been reduced.
10. In the circumstances I find no merit in the application and the same is dismissed. The applicant to serve his sentence as passed by the High Court on appeal.
11. Orders accordingly.
Ruling delivered, dated and signed in Open Court and Virtual Platform, Teams this 24th day of September 2024
In the presence of: -
The applicant in person from Shimo La Tewa prison.
Mr. Ngiri for the Respondent
Etropia - Court Assistant
R U L I N G ON REVIEW OF SENTENCE
1. This is an application by for review of sentence by the applicant Felix Munguti Kasimo by way of Notice of Motion undated and supported by an affidavit that is not commissioned or dated. The applicant seeks commutation of his sentence of imprisonment so as to be placed on probation for the remainder of the prison term. The application is brought under section 364 of the Criminal Procedure Code (Cap. 75) Laws of Kenya (CPC).
2. The grounds in support of the application are that the applicant is currently serving a 10-year term of imprisonment at Shimo La Tewa maximum security prison. Although he indicates that the sentence was for the offence of defilement the record from the Magistrates Court and the High Court on appeal shows that he was convicted and sentenced for the offence of sexual assault contrary to section 5(1)(a)(i) as read with section 5(2) of the Sexual Offences Act (Cap. 63A) Laws of Kenya (SOA). He was initially sentenced to serve 15 years imprisonment by the trial court.
3. He appealed in High Court Criminal Appeal No. 71 of 2019 and his conviction was upheld but the sentence reduced to 10 years imprisonment which is the minimum sentence for the offence under the SOA. He now prays for commutation of sentence to probation.
4. Section 362 of the Criminal Procedure Code provides for the supervisory power of the High Court over proceedings before the magistrates courts 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.
5. Section 364 CPC cited by the applicant in this matter, provides for the powers of the High Court on revision thus:
(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) …
6. I have considered the proceedings on sentencing by the trial court as well as the offence charged and I am unable to find any incorrectness, illegality or impropriety in the sentence passed against the applicant and neither do I find any irregularity in the proceedings.
7. In any case, this court already considered the matter on appeal and made orders thereon which included a reduction in the sentence. It cannot be that the court can go back to consider the incorrectness, illegality or impropriety in the sentence of the trial court at this point. That is presumed to have been considered at the time of the appeal.
8. I have considered the sentence review report provided by the Probation and Aftercare Service department and I note that it recommends that the applicant can benefit from non-custodial sentence by way of a probation order for the remaining term of his sentence in view of his advanced age, being 51 years and prevailing healthy status. That is an indication that he is in good health especially since there is no contrary indication in the report. However, the views of the victim are not available in the report as she is said to have relocated from her residence and could not be traced.
9. The offence for which the applicant was convicted carries a minimum term of imprisonment which this court has already imposed, thereby reducing the initial sentence imposed by the trial court. This court had the option to enhance the sentence to life imprisonment as provided for under section 5(2) of the SOA given the very young age of the victim at 5 years but opted to reduce the same to the minimum provided by law. This court cannot sit to revise its own orders. There is no ground upon which this court can commute the sentence to probation particularly, the sentence having been reduced.
10. In the circumstances I find no merit in the application and the same is dismissed. The applicant to serve his sentence as passed by the High Court on appeal.
11. Orders accordingly.
Ruling delivered, dated and signed in Open Court and Virtual Platform, Teams this 24th day of September 2024
In the presence of: -
The applicant in person from Shimo La Tewa prison.
Mr. Ngiri for the Respondent
Etropia - Court Assistant