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JudgmentJAVAN MWANJAU VS The Republic9 min read

JAVAN MWANJAU VS The Republic

High Court at Mombasa High Court · · Wendy Micheni

REPUBIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

CRIMINAL PETITION NO. E004 OF 2024

JAVAN MWANJAU…………...………………………….……..APPLICANT 

VERSUS

REPUBLIC...……………………….………………………….RESPONDENT 

RULING

Preliminaries

  1. Before this Court is an undated Notice of Motion application that was lodged on September 2023 which sought for the following:-
  2. Spent
  3. THAT, the Hon. Court be pleased to review the thirty (30) year sentence imposed by the Constitutional Court, taking into consideration that Article 53 (1)(f) (i) & (ii), (2) of the Constitution guarantees every child of the right not to be detained, except as a measure of last resort, and when detained, to be held for the shortest appropriate period of time; and separate from adults and in conditions that take account of the child’s sex and age.
  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, should the eventual computation result into a balance of three (3) years or less, may the Hon. Court be pleased to grant him probation orders if my circumstances so fit
  6. ANY OTHER order that the Hon. Court deems fit to give in the interest of justice
  7. The grounds of the application on the face of it and in the supporting affidavit were that:-
  8. He was charged and convicted for the offence of murder contrary to section 203 as read with 204 of the Penal Code in High Court Criminal Case No 8 of 2011 at Mombasa and sentenced to suffer death on the 8th day of May 2013.
  9. He appealed against the trial court's decision to the Court of Appeal vide C.O.A No 87 of 2014 at Mombasa whereby the death sentence was substituted with the president's pleasure (PP) sentence pursuant to Section 25 (2) of the Penal Code Cap 63, Laws of Kenya on the 11th day of December 2015.
  10. He lodged a constitutional petition vide Petition No. 248 of 2018 at Mombasa seeking the redress of the violation of his rights as a child whereby the High Court substituted the president's pleasure (PP) sentence with a definite sentence of thirty (30) years imprisonment starting from his date of conviction.
  11. Pursuant to Article 53 (1) (f) (i) & (ii), (2) of the Constitution every child had the right not to be detained, except as a measure of last resort, and when detained, to be held for the shortest appropriate period of time; and separate from adults and in conditions that take account of the child's sex and age.
  12. The directions issued by the Supreme Court in Francis Karioko Muruatetu & Another vs Republic (2017) eKLR declared the application of the mandatory death sentence as unconstitutional and allowed those aggrieved to lodge re-sentencing applications to the High Court
  13. The Applicant was charged with the offence of murder contrary to Section 203 as read with 204 of the Penal Code  Cap 63 of the Laws of Kenya. The Particulars of the offence being that on the 6th day of February, 2011 at Bura Ndogo area, Taveta Township in Taita Taveta County within Coast Province jointly with another not before court murdered MSHANA JUMA ABDALLA.
  14. The Applicant sought to have this Court review his sentence preferred of 30 years in prison from the date of conviction to a leaser sentence of 30 years’ imprisonment.

Analysis and Determination

  1. Considering the pleadings of the parties, it is my view that the main issue for determination is whether the undated application filed is merited. The offence with which, the applicant is convicted of and sentenced is provided for Section 203 as read with 204 of the Penal Code Cap 63 of the Laws of Kenya as follows: -

“203. Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”.

  1. In considering the application, I note that the revisionary power of the High Court is provided for under Section 362 of the Criminal Procedure Code (Cap 75 of the Laws of Kenya)which states 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.”

  1. However, the section is to be read together with Section 364 of the Code which states as follow: -

“(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.

(2) No order under this section shall be made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by an advocate in his own defence: Provided that this subsection shall not apply to an order made where a subordinate court has failed to pass a sentence which it was required to pass under the written law creating the offence concerned.

(3) Where the sentence dealt with under this section has been passed by a subordinate court, the High Court shall not inflict a greater punishment for the offence which in the opinion of the High Court the accused has committed than might have been inflicted by the court which imposed the sentence.

(4) Nothing in this section shall be deemed to authorize the High Court to convert a finding of acquittal into one of conviction.

(5) When an appeal lies from a finding, sentence or order, and no appeal is brought, no proceeding by way of revision shall be entertained at the insistence of the party who could have appealed.”

  1. From the foregoing provisions, it is clear that the High Court may exercise revisional jurisdiction in case of a conviction or in any other order.  This jurisdiction will be exercised if the court is satisfied that any finding, sentence or order recorded or passed or the regularity of any proceedings of any court which is sub-ordinate to the High Court did not meet the required standards of correctness, legality and propriety.  What may not be reviewed under this jurisdiction is an order of acquittal.
  2. In the present application, the Applicant challenges the exercise of judicial discretion by the trial court. This court can only interfere with such exercise of sentencing discretion in circumstances that are now settled in law. The Court of Appeal in Ahmad Abolfathi Mohammed & Another – Versus - Republic Criminal Appeal No. 135 of 2016 (unreported) held at Page 25 thus:

“As what is challenged in this appeal regarding sentence is essentially the exercise of discretion, as a principle this Court will normally not interfere with exercise of discretion by the court appealed from unless it is demonstrated that the court acted on wrong principle; ignored material factors; took into account irrelevant considerations; or on the whole that the sentence is manifestly excessive. In Bernard Kimani Gacheru v. Republic, Cr App No.188 of 2000 this Court stated thus:

“It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account, some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, any one of the matters already stated is shown to exist.”

  1. The Supreme Court decision in Francis Karioko Muruatetu & Another -vs- Republic [2017] eKLR and subsequent decisions by the Court of Appeal have ruled that the mandatory minimum sentences no longer have a place in our jurisdiction because they deprive the trial court of its discretion to mete out a sentence that is commensurate with the gravity of the circumstances surrounding the commission of the offence. The Supreme Court held that a trial court ought to consider the following before passing sentence: -
    1. Age of the offender,
    2. Whether or not the offender is a first offender,
    3. Whether the offender pleaded guilty,
    4. The character and record of the offender,
    5. Commission of the offence in response to gender-based violence,
    6. Remorsefulness of the offender,
    7. The possibility of reform and social re-adaptation of the offender,
    8. Any other factor that the court considers relevant.
  2. The court is also aware that the dust is yet to settle on the sentencing in sexual offences. The Supreme Court of Kenya recently did speak in a very firm voice to the effect that the   minimum sentence does not take away the court’s discretion. This was in the case of Republic – Versus - Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR). The Apex court held verbatim as follows;

56.Mandatory sentences leave the trial court with absolutely no discretion such that upon conviction, the singular sentence is already prescribed by law. Minimum sentences however set the floor rather than the ceiling when it comes to sentences. What is prescribed is the least severe sentence a court can issue, leaving it open to the discretion of the courts to impose a harsher sentence. In fact, to use the words mandatory and minimum together convolutes the express different definitions given to each of the two words. Although, the term ‘mandatory minimum’ can be found used in different jurisdictions, including the United States, and in a number of academic articles, it is not applicable as a legally recognised term in Kenya. In this country, a mandatory sentence and minimum sentence can neither be used interchangeably nor in similar circumstances as they refer to two very different set of meanings and circumstances……….

66.We must also reaffirm that, although sentencing is an exercise of judicial discretion, it is Parliament and not the Judiciary that sets the parameters of sentencing for each crime in statute. As such, striking down a sentence provided for in Statute, must be based not only on evidence and sound legal principles but on an in-depth consideration of public interest and the principles of public law that informed the making of that specific law. A judicial decision of that nature cannot be based on private opinions, sentiments, sympathy or benevolence. It ought not to be arbitrary, whimsical or capricious. However, where a sentence is set in Statute, the Legislature has already determined the course, unless it is declared unconstitutional, based on sound principles and clear guidelines, upon which the Legislature should then act. Suffice to say, where Parliament enacts legislation, the Judicial arm should adjudicate disputes based on the provisions of the law.

  1. Surfice to say, from the facts of the case, the Applicant committed a serious offence which led to the death of a minor aged 8 years and left a 14 year old girl nursing grievous injuries. The 30 years sentence imposed by the Court is much in order. Accordingly  I find that the conviction followed the guidelined as per the case of Muruateru (Supra) and hereby make a finding that the same should be varied or reviewed. The undated Notice of Motion application is hereby found to lack merit and is dismissed with no further orders.

IT IS SO ORDERED ACORDINGLY.

RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS …….…………DAY OF ………………………..…….., 2025

……………………………………………………..

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.

    JAVAN MWANJAU VS The Republic JAVAN MWANJAU VS The Republic