1. The applicant filed Chamber Summons on 27/10/2023 seeking orders:
1) That he humbly prays that this Hon. Court implements the factors laid out at Philip Maingi and 5 Others –vs- Rep Petition No. 17 of 2021 at Machakos High Court.
2) That this Hon. Court takes into account any clemency factors beforehand and hands the petitioner the appropriate reprieve.
3) That this Hon. Court applies the principles put down by the Supreme Court concerning a first offender.
4) That constitutionality of mandatory minimum sentence raises a question of law under SOA as mandatory nature court deprives court legitimate jurisdiction exercise, its discretion not conforming to tenets of trial as under Articles 25(c ) (Christopher Ochieng –vs- Republic (2018) Appl. No. 93/2014, COA Appl. No.312 of 2018 Evans Wanjala Wanyonyi at Eldoret)
5) That the applicant to be present during the hearing and determination of this application.
2. It is supported by the affidavit of the applicant where he depones that:
1) That he is a Kenyan male adult of sound mind and the applicant herein hence competent to swear this affidavit in his own behalf.
2) That he was arrested, tried and convicted for the offence of defilement contrary to the law.
3) That he was sentenced to life imprisonment for the offence of defilement S.O No. 3 of 2006 after arrest and full trial process.
4) That he appealed in high court and sentence reduced to 30 years imprisonment.
5) That having been aggrieved by the decision of the lower court he filed Misc.Appl No. 125 of 2019 at Makueni High Court.
6) That he has filed this petition following the recent developments of the law following the decision of Philip Maingi & 5 Others –vs- Rep (2022) in Machakos High Court.
7) That the applicant requests this Hon. Court to review his sentence following factors laid out in the decision concerning principles of a first offender and that mitigation factors to be considered too.
8) That Article 27(1), 47(1), 2(4) are among constitution foundation.
3. Parties filed submissions.
4. The applicant’s submissions are to the effect that he apprehends that this court did away with the life imprisonment and gave him 30 years imprisonment and that now he seeks the reduction of his sentence to the time served and him being set at liberty. He relies on what he refers to as the “amendment issued by then Justice Odunga in respect of people’s dignity and fair trial” his prayer is that the sentence of 30 years’ imprisonment be reduced to “the minimum sentence of such an offence”. He also argues that he is fully rehabilitated. He asks that his case be dismissed and he be set at liberty that he will have time to become a productive member of the society.
5. The application is opposed - made clear through the submissions of the ODPP – that the applicant is in effect asking this court to review its own decision in HCRA 40/2018, HCCRA 12/2020 – contrary to Article 165 (6) and (7) of the Constitution.
6. The issue is whether the application is tenable.
7. The applicant has filed several appeals – HCCRA 265 OF 2017, HCCRA 40/2018, HCCRA E012/2020
8. In E012/2020 Dulu J. observed that the applicant upon sentencing to life imprisonment in Makindu SPMCRC 237/2013 he filed Machakos HCCRA 99/2013 – which was dismissed. He filed NRB CRA 42/2016 in the Court of Appeal – the appeal was dismissed – both conviction and sentence were upheld. He filed HCCRA 265/17, 40/2018 – both were dismissed for being an abuse of the court. Later filed Misc. Cr. Application 167/2020 for review of sentence – i.e. sentence rehearing. On 30/09/2020 the life imprisonment was revised to 30 years’ imprisonment by the trial court.
9. He filed MKN.HCCRA 12 of 2020 against the revised sentence of 30 years’ imprisonment. On 01/12/2021 Hon Dulu J. dismissed the appeal and upheld the sentence of 30 years’ imprisonment.
10. From the foregoing, it is evident that the applicant is relentless in bombarding the system with application upon application – regardless of whether the court has jurisdiction to hear the same.
11. In the ruling dated 22/4/2019 where the Judge (Ong’udi J.) struck out the HCCRA 265/17, and 40/18 for being an abuse of the court – the Judge noted that the applicant could approach the court in any other means but not through an appeal.
12. The applicant has now brought a revision application.
13. Vide the judgment of Hon Dulu J. in HCCRA E12 of 2020 of 1/12/2021 the sentence of the subordinate court of 30 years’ imprisonment was upheld.
14. I have noted with great concern how convicts serving long sentences are perpetually filing every manner of miscellaneous applications, petitions and applications – all geared towards attaining their liberty.
15. I find it necessary to call out the National Legal Aid Service established under the Legal Aid Act Cap 16A – which is the Act of parliament to give effect to Articles 19(2), 48, 50(2) (g) &(h) of the Constitution to facilitate access to justice and social justice, to establish the legal Aid service to provide legal aid, and for funding of legal aid and for connected purposes. These Constitutional Provisions state:
Article 19 (2) of the Constitution: The purpose of recognising and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realization of the potential of all human beings.
Article 48 of the Constitution: Access to justice.
The State shall ensure access to justice for all persons and, if any fee is required, it shall be reasonable and shall not impede access to justice.
Article 50(2) Fair hearing. Every accused person has the right to a fair trial, which includes the right—
(g) to choose, and be represented by, an advocate, and to be informed of this right promptly;
(h) to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly
16. The Act is intended to breathe life into these provisions of the Constitution. It defines legal AID to include legal advice, creating awareness through the provision of legal information and law related education. It is evident to me that the legal aid service needs as a matter of necessity to ensure that there is a level of awareness on what an applicant/appellant can/cannot do as the court cannot give legal advice. NLAS is the body that is mandated to provide legal advice as legal aid – and to create awareness, as part of legal aid. It would save both the courts and the applicant’s time and resources. The persons we hold behind bars have the time to seek among themselves “legal advice” – on how to gain their liberty. The law came into force on 10/05/2016 – but is presence is unfelt – the effect is things like this –NLAS bears the obligation, the constitutional duty to ensure that these people get the legal advice they need/awareness they require for self-representation. It has the duty to put in place the necessary infrastructure in place to provide legal advice and the necessary awareness to those who need it including indigent inmates in our prisons exercising their various constitutional rights.
17. That said this application by this applicant is an abuse of the court process and must be rejected, which I hereby do.
18. The application is accordingly struck out
Dated, signed and delivered this 28th March 2024
Mumbua T Matheka
Judge
CA Mwiwa
Applicant Present virtually
For State: Ms. Nyakibia