' (This application originates from Mombasa High Court Criminal Case No. 1 of 2016, arising from a judgment delivered on the 16th day of July 2019 by Hon. D.O. Chepkwony (J).)
THE PARTIES
Applicant:
The Applicant is an adult prisoner currently serving three (3) sentences of 30 years each, imposed to run consecutively at Shimo La Tewa Maximum Prison, following his conviction for the offence of murder.
Respondent:
The Respondent is the Director of Public Prosecutions (DPP), an office established under Article 157 of the Constitution of Kenya, mandated to institute and undertake criminal proceedings before any court (other than a court martial) in respect of offences known to Kenyan law.
RELIEF SOUGHT
The Applicant prays that this Honourable Court:
Considers that he was charged in Criminal Case No. 28 of 2004 with the offence of murder contrary to section 203 as read with section 204 of the Penal Code.
He was arrested on 16th March 2003 , arraigned in March 2004, and remained in custody until 15th January 2011 , when he secured bail following the promulgation of the new Constitution.
His bail was subsequently cancelled, and he was returned to custody on 16th November 2015 under Skeleton File No. 1 of 2016 and was later convicted on 11th December 2019 .
He prays that this court considers his sentence in light of Section 333(2) of the Criminal Procedure Code and the Sentencing Policy Guidelines , which require the court to factor in time spent in pre-trial custody.
He further prays that the total sentence of ninety (90) years is harsh, excessive, and unrealistic considering his current age and general life expectancy.
LEGAL FOUNDATION OF THE APPLICATION
Section 397 of the Criminal Procedure Code
Allows a person convicted by the High Court and sentenced to death, or to imprisonment exceeding twelve months, to apply for review of sentence.
Section 135 of the Criminal Procedure Code
Permits multiple offences to be charged together where they are founded on the same facts or form part of a series of offences of the same or similar character.
Section 333(2) of the Criminal Procedure Code
Requires that any period spent in custody prior to sentence must be taken into account when computing the final term to be served.
APPLICANT’S WRITTEN SUBMISSIONS
This application arises from a murder case involving three counts, in respect of which the Applicant was convicted and sentenced to death. The death sentence was later commuted to life imprisonment by His Excellency the President.
The commutation provided some relief, but the life sentence remained indefinite and offered little hope of rehabilitation or reintegration.
The Applicant subsequently filed Misc. Application No. E212 of 2023 , resulting in the life sentence being substituted with thirty (30) years on each count , to run consecutively.
The Applicant now seeks a further review of sentence, noting that the cumulative sentence totals ninety (90) years , which, in light of his age (48 years), effectively amounts to a life sentence.
He submits that Section 135 CPC was applicable, as the three counts arose from the same incident, committed by a single offender with a single intention, and therefore the sentences ought to have been treated globally.
The cumulative sentence defeats the purpose of rehabilitation, denies reintegration, and results in a disproportionate punishment when compared to the life expectancy of the Applicant.
He relies on Ali Abdalla Mwanza v Republic (2018) eKLR , where the court held that a sentence of 40 years for a 36-year-old was manifestly excessive considering life expectancy, and substituted it with 20 years.
The Applicant expresses remorse, repentance, and apologies to: God;
The victims and their families;
The State;
The community;
His own family now living in destitution.
He urges this Court to consider that all sins can be forgiven upon repentance (Ezekiel 36:26–27) and that he has undergone transformation and rehabilitation during long periods in custody since 2003.
He prays that the sentences be ordered to run concurrently , given that the offences arose from a single incident committed with one continuous intention.
He further prays that his sentence should run from the date of his first arrest in 2003 , with deduction of the period he was out on bond, pursuant to Clause 7.10 and 7.11 of the Sentencing Policy Guidelines and Section 333(2) CPC .
ANALYSIS ON CONSOLIDATION AND SENTENCING
The record shows that the three offences arose from one continuous drunken incident , occurring on the same day, in the same location, within a short uninterrupted time span. The witnesses, facts, and sequence of events were identical.
Section 135 CPC provides that offences arising from the same facts, or forming a series of similar offences, should be tried together to avoid prejudice and multiplicity of proceedings. Authorities include: Republic v Odak
Republic v Ongomo & Others
Augustine Kinyua Ita v Republic
The failure to treat the incident as a single transaction resulted in irregular cumulative sentencing , which was excessive and prejudicial.
The Applicant spent long periods in custody: Arrest: 16 March 2003
Arraignment: 2004
In custody until 15 January 2011
Re-arrest and remand from 16 November 2015 to 2019
Yet this time was not credited, contrary to Section 333(2) CPC and Article 50(2)(q) of the Constitution.
The mystery surrounding the disappearance and reconstruction of the file, reversion of the charge from manslaughter back to murder, and cancellation of bond raises further concerns of procedural fairness.
I find that: The offences should have been treated globally as one criminal episode.
The sentences should have run concurrently.
The period spent in custody prior to conviction must be factored in.
ORDERS
The convictions on all three counts are affirmed .
The sentences of thirty (30) years on each count shall run concurrently .
The concurrent sentence shall be computed from the date the Applicant was first arraigned in court in 2004 , less the four (4) years he was out on bond.
The sentencing therefore runs from16/3/ 2004 to 15/1/2011 ,then16/11/2015 to the conviction date ,16/07/2019 the pre-trial custody , pursuant to Section 333(2) CPC .
5. It is s ordered
DATED SIGNED AND DELIVERED THIS 27 TH DAY OF NOVEMBER 2027
WENDY KAGENDO
JUDGE
IN THE PRESENCE
THE APPLICANT
MR SIRIMA FOR THE STATE
MS BEBORA COURT ASSISTANT
'
THE PARTIES
Applicant:
The Applicant is an adult prisoner currently serving three (3) sentences of 30 years each, imposed to run consecutively at Shimo La Tewa Maximum Prison, following his conviction for the offence of murder.
Respondent:
The Respondent is the Director of Public Prosecutions (DPP), an office established under Article 157 of the Constitution of Kenya, mandated to institute and undertake criminal proceedings before any court (other than a court martial) in respect of offences known to Kenyan law.
RELIEF SOUGHT
The Applicant prays that this Honourable Court:
Considers that he was charged in Criminal Case No. 28 of 2004 with the offence of murder contrary to section 203 as read with section 204 of the Penal Code.
He was arrested on 16th March 2003 , arraigned in March 2004, and remained in custody until 15th January 2011 , when he secured bail following the promulgation of the new Constitution.
His bail was subsequently cancelled, and he was returned to custody on 16th November 2015 under Skeleton File No. 1 of 2016 and was later convicted on 11th December 2019 .
He prays that this court considers his sentence in light of Section 333(2) of the Criminal Procedure Code and the Sentencing Policy Guidelines , which require the court to factor in time spent in pre-trial custody.
He further prays that the total sentence of ninety (90) years is harsh, excessive, and unrealistic considering his current age and general life expectancy.
LEGAL FOUNDATION OF THE APPLICATION
Section 397 of the Criminal Procedure Code
Allows a person convicted by the High Court and sentenced to death, or to imprisonment exceeding twelve months, to apply for review of sentence.
Section 135 of the Criminal Procedure Code
Permits multiple offences to be charged together where they are founded on the same facts or form part of a series of offences of the same or similar character.
Section 333(2) of the Criminal Procedure Code
Requires that any period spent in custody prior to sentence must be taken into account when computing the final term to be served.
APPLICANT’S WRITTEN SUBMISSIONS
This application arises from a murder case involving three counts, in respect of which the Applicant was convicted and sentenced to death. The death sentence was later commuted to life imprisonment by His Excellency the President.
The commutation provided some relief, but the life sentence remained indefinite and offered little hope of rehabilitation or reintegration.
The Applicant subsequently filed Misc. Application No. E212 of 2023 , resulting in the life sentence being substituted with thirty (30) years on each count , to run consecutively.
The Applicant now seeks a further review of sentence, noting that the cumulative sentence totals ninety (90) years , which, in light of his age (48 years), effectively amounts to a life sentence.
He submits that Section 135 CPC was applicable, as the three counts arose from the same incident, committed by a single offender with a single intention, and therefore the sentences ought to have been treated globally.
The cumulative sentence defeats the purpose of rehabilitation, denies reintegration, and results in a disproportionate punishment when compared to the life expectancy of the Applicant.
He relies on Ali Abdalla Mwanza v Republic (2018) eKLR , where the court held that a sentence of 40 years for a 36-year-old was manifestly excessive considering life expectancy, and substituted it with 20 years.
The Applicant expresses remorse, repentance, and apologies to: God;
The victims and their families;
The State;
The community;
His own family now living in destitution.
He urges this Court to consider that all sins can be forgiven upon repentance (Ezekiel 36:26–27) and that he has undergone transformation and rehabilitation during long periods in custody since 2003.
He prays that the sentences be ordered to run concurrently , given that the offences arose from a single incident committed with one continuous intention.
He further prays that his sentence should run from the date of his first arrest in 2003 , with deduction of the period he was out on bond, pursuant to Clause 7.10 and 7.11 of the Sentencing Policy Guidelines and Section 333(2) CPC .
ANALYSIS ON CONSOLIDATION AND SENTENCING
The record shows that the three offences arose from one continuous drunken incident , occurring on the same day, in the same location, within a short uninterrupted time span. The witnesses, facts, and sequence of events were identical.
Section 135 CPC provides that offences arising from the same facts, or forming a series of similar offences, should be tried together to avoid prejudice and multiplicity of proceedings. Authorities include: Republic v Odak
Republic v Ongomo & Others
Augustine Kinyua Ita v Republic
The failure to treat the incident as a single transaction resulted in irregular cumulative sentencing , which was excessive and prejudicial.
The Applicant spent long periods in custody: Arrest: 16 March 2003
Arraignment: 2004
In custody until 15 January 2011
Re-arrest and remand from 16 November 2015 to 2019
Yet this time was not credited, contrary to Section 333(2) CPC and Article 50(2)(q) of the Constitution.
The mystery surrounding the disappearance and reconstruction of the file, reversion of the charge from manslaughter back to murder, and cancellation of bond raises further concerns of procedural fairness.
I find that: The offences should have been treated globally as one criminal episode.
The sentences should have run concurrently.
The period spent in custody prior to conviction must be factored in.
ORDERS
The convictions on all three counts are affirmed .
The sentences of thirty (30) years on each count shall run concurrently .
The concurrent sentence shall be computed from the date the Applicant was first arraigned in court in 2004 , less the four (4) years he was out on bond.
The sentencing therefore runs from16/3/ 2004 to 15/1/2011 ,then16/11/2015 to the conviction date ,16/07/2019 the pre-trial custody , pursuant to Section 333(2) CPC .
5. It is s ordered
DATED SIGNED AND DELIVERED THIS 27 TH DAY OF NOVEMBER 2027
WENDY KAGENDO
JUDGE
IN THE PRESENCE
THE APPLICANT
MR SIRIMA FOR THE STATE
MS BEBORA COURT ASSISTANT
'