1. The Petitioner herein, Joseph Losike Longilai, was convicted and sentenced for the offence of Attempted Murder contrary to Section 220 of the Penal Code in Criminal Case Number 201 of 2015 at the Chief Magistrate’s Court in Nyahururu, wherein he was sentenced to life imprisonment.
2. The Petitioner lodged an appeal at the High Court against the conviction and sentence, whereby the conviction was upheld and the sentence reduced to 30 years imprisonment.
3. The Petitioner filed the present petition through an undated application by way of Notice of Motion whereby he contends that the interpretation of the provisions of Section 220 and 389 of the Penal Code gives rise to a contradiction between the two provisions which contradiction goes against Articles 25 (1), 27, 28, 29 (1), 48 and 50 (2) (q) of the Constitution and that the benefit of the said contradiction should be afforded to him.
4. Further, he contends that based on the contradictions, he is serving an unlawful sentence and prays that he be set at liberty for having already served 8 years imprisonment.
5. At the hearing, the Petitioner also made an oral application to have his sentence reduced.
6. The Prosecution Counsel responded orally in court, whereby she opposed the Petition on the grounds that any review of the sentence meted out by the court could only be appealed to the Court of Appeal as the court was functus officio.
7. With respect to the contradiction contended by the Appellant in the interpretation of Sections 220 and 389 of the Penal Code, it was the Respondent's argument that there was no contradiction to the said provisions as Section 389 was applicable to offences where no punishment had been provided and that Section 220 had already provided a punishment. Further, it was contended that the application was without merit and ought to be dismissed.
8. I have considered the Petition and the rival submissions.
9. With regard to the oral application to have the sentence reduced, having that this court had already pronounced itself on the judgment in the Appeal dated 30th July, 2020, I find that indeed this court is functus officio in that regard. Consequently, the only avenue available to the Petitioner would be by way of an appeal against the sentence to the Court of Appeal.
10. With respect to the alleged contradiction as to the interpretation of Sections 220 and 389 of the Penal Code, I will analyse the two provisions of law separately to establish whether any contradictions exist.
11. Section 220 of the Penal Code provides as follows;
Any person who—
(a) attempts unlawfully to cause the death of another; or
(b) with intent unlawfully to cause the death of another does any act, or omits to do any act which it is his duty to do, such act or omission being of such a nature as to be likely to endanger human life,
is guilty of a felony and is liable to imprisonment for life.
12. Section 389 of the Penal Code provides as follows;
Any person who attempts to commit a felony or a misdemeanour is guilty of an offence and is liable, if no other punishment is provided, to one-half of such punishment as may be provided for the offence attempted, but so that if that offence is one punishable by death or life imprisonment he shall not be liable to imprisonment for a term exceeding seven years.
13. Based on my reading of the two provisions, it is my carefully evaluated perspective that Section 389 applies specifically to attempts to commit offences where no other punishment is provided. However, Section 220 of the Penal Code describes the offence of attempted murder, and also prescribes a sentence for the offence. Consequently, I have no doubt in my mind that the two provisions do not contradict each other.
14. That question was considered by the Court of Appeal in Mulinge Maswili v Republic [2012] KECA 149 (KLR) the Court of Appeal when faced with a similar issue rendered itself as follows:
“The general penalty for offences attempted is given as half of the sentence for the completed offence. There is, however, an exception regarding those offences which carry the death penalty or life imprisonment. For such offences, the court is given discretion to mete out sentences not exceeding seven years imprisonment, and even for those ones, there is a further exception. For attempted offences for which separate and distinct punishment is provided, section 389, above, would not apply. In the former category are offences like murder contrary to section 203 as read with section 204 of the Penal Code respectively. Such an offence carries the death penalty. The offence of attempted murder, does not have a separate distinct punishment. That being so, and because there is no way one can half the death penalty, the trial court has the discretion to mete out a sentence not exceeding seven years imprisonment.
In the latter category, namely, the offences attempted which carry a separate and distinct sentence that is where the offence of attempted robbery with violence falls. Parliament in its wisdom considered it essential to provide specific sentences for the offences attempted. To obviate conflict section 389 of the Penal Code was worded in such a way as to create an exception to the general penalty provided therein. Hence the inclusion of the phrase “if no other punishment is provided.”
15. Having established that there is no contradiction between Sections 220 and 389 of the Penal Code and following that the violation of the Constitution is based on the perceived contradiction in the two provisions of the Penal Code, I find no need to delve further into the merits or otherwise in the application by the Petitioner.
16. In the result, I find that the application herein is without merit. Accordingly, it is dismissed.
17. It is so ordered.
2. The Petitioner lodged an appeal at the High Court against the conviction and sentence, whereby the conviction was upheld and the sentence reduced to 30 years imprisonment.
3. The Petitioner filed the present petition through an undated application by way of Notice of Motion whereby he contends that the interpretation of the provisions of Section 220 and 389 of the Penal Code gives rise to a contradiction between the two provisions which contradiction goes against Articles 25 (1), 27, 28, 29 (1), 48 and 50 (2) (q) of the Constitution and that the benefit of the said contradiction should be afforded to him.
4. Further, he contends that based on the contradictions, he is serving an unlawful sentence and prays that he be set at liberty for having already served 8 years imprisonment.
5. At the hearing, the Petitioner also made an oral application to have his sentence reduced.
6. The Prosecution Counsel responded orally in court, whereby she opposed the Petition on the grounds that any review of the sentence meted out by the court could only be appealed to the Court of Appeal as the court was functus officio.
7. With respect to the contradiction contended by the Appellant in the interpretation of Sections 220 and 389 of the Penal Code, it was the Respondent's argument that there was no contradiction to the said provisions as Section 389 was applicable to offences where no punishment had been provided and that Section 220 had already provided a punishment. Further, it was contended that the application was without merit and ought to be dismissed.
8. I have considered the Petition and the rival submissions.
9. With regard to the oral application to have the sentence reduced, having that this court had already pronounced itself on the judgment in the Appeal dated 30th July, 2020, I find that indeed this court is functus officio in that regard. Consequently, the only avenue available to the Petitioner would be by way of an appeal against the sentence to the Court of Appeal.
10. With respect to the alleged contradiction as to the interpretation of Sections 220 and 389 of the Penal Code, I will analyse the two provisions of law separately to establish whether any contradictions exist.
11. Section 220 of the Penal Code provides as follows;
Any person who—
(a) attempts unlawfully to cause the death of another; or
(b) with intent unlawfully to cause the death of another does any act, or omits to do any act which it is his duty to do, such act or omission being of such a nature as to be likely to endanger human life,
is guilty of a felony and is liable to imprisonment for life.
12. Section 389 of the Penal Code provides as follows;
Any person who attempts to commit a felony or a misdemeanour is guilty of an offence and is liable, if no other punishment is provided, to one-half of such punishment as may be provided for the offence attempted, but so that if that offence is one punishable by death or life imprisonment he shall not be liable to imprisonment for a term exceeding seven years.
13. Based on my reading of the two provisions, it is my carefully evaluated perspective that Section 389 applies specifically to attempts to commit offences where no other punishment is provided. However, Section 220 of the Penal Code describes the offence of attempted murder, and also prescribes a sentence for the offence. Consequently, I have no doubt in my mind that the two provisions do not contradict each other.
14. That question was considered by the Court of Appeal in Mulinge Maswili v Republic [2012] KECA 149 (KLR) the Court of Appeal when faced with a similar issue rendered itself as follows:
“The general penalty for offences attempted is given as half of the sentence for the completed offence. There is, however, an exception regarding those offences which carry the death penalty or life imprisonment. For such offences, the court is given discretion to mete out sentences not exceeding seven years imprisonment, and even for those ones, there is a further exception. For attempted offences for which separate and distinct punishment is provided, section 389, above, would not apply. In the former category are offences like murder contrary to section 203 as read with section 204 of the Penal Code respectively. Such an offence carries the death penalty. The offence of attempted murder, does not have a separate distinct punishment. That being so, and because there is no way one can half the death penalty, the trial court has the discretion to mete out a sentence not exceeding seven years imprisonment.
In the latter category, namely, the offences attempted which carry a separate and distinct sentence that is where the offence of attempted robbery with violence falls. Parliament in its wisdom considered it essential to provide specific sentences for the offences attempted. To obviate conflict section 389 of the Penal Code was worded in such a way as to create an exception to the general penalty provided therein. Hence the inclusion of the phrase “if no other punishment is provided.”
15. Having established that there is no contradiction between Sections 220 and 389 of the Penal Code and following that the violation of the Constitution is based on the perceived contradiction in the two provisions of the Penal Code, I find no need to delve further into the merits or otherwise in the application by the Petitioner.
16. In the result, I find that the application herein is without merit. Accordingly, it is dismissed.
17. It is so ordered.