JOSEPH ODHIAMBO CHWANYA VS The Republic JOSEPH ODHIAMBO CHWANYA VS The Republic

(Being an application for review of sentence of imprisonment arising from original conviction and sentence in Mombasa High Court Cr. Case No. 2 of 2013, A. Ongeri, J. on 26/10/2018 and Judgment in Mombasa Court of Appeal Cr. Appeal No. 70 of 2021 delivered on 12/4/2024)

R U L I N G ON REVIEW OF SENTENCE
1. This is an application for review of sentence by the applicant Joseph Odhiambo Chwanya by way of Notice of Motion dated 23/8/2024 and supported by an affidavit that is not commissioned or dated. That will however not deter the court from considering the application if only to get the applicant have an issue to the issues raised therein.
2. The applicant seeks review of his conviction and sentence of 20 years imprisonment for the offence of murder contrary to section 203 as read with section 204 of the Penal Code (Cap. 63) Laws of Kenya in Mombasa High Court Criminal Case No. 2 of 2013. He thereafter appealed to the Court of Appeal at Mombasa in Criminal Appeal No. 70 of 2021 which appeal was dismissed and the sentence confirmed.
3. The application is expressed to be brought under sections 329, 333(2) & 397 of the Criminal Procedure Code (Cap. 75) Laws of Kenya (CPC) and section 203 and 204 of the Penal Code (Cap. 63) Laws of Kenya (PC).
4. The grounds in support of the application, together with his submissions all filed at the same time are that the applicant is currently serving a 20-year term of imprisonment at Shimo La Tewa Maximum security prison. He avers that he has now served about 12 years imprisonment. His plea is that he has since been rehabilitated and reformed as the key objectives for incarceration. He submits that he has seriously repented and changed his private and social behavior and he is determined to continue his good behaviour once he is released.
5. He also prays that this court do revise his sentence to take into account the pre-trial custody period from his arrest on 21/1/2013 to the the date of conviction on 26/10/2018.
6. I have considered the application by the applicant and the grounds upon which it is based.
7. The applicant has cited various provisions of the law upon which his application is anchored. Section 216 CPC applies to procedure in trials before subordinate courts. It is therefore not applicable to this court. Its equivalent however is section 329 CPC which provides that the court may, before passing sentence, receive such evidence as it thinks fit in order to inform itself as to the proper sentence to be passed. It is clear that the section applies before sentence is passed and not when an appellant has served a certain period of his term of imprisonment. The section applied at the time of sentencing by this court. It is not helpful to the appellant at this point in time.
8. This court already considered the applicant’s mitigation before passing sentence. What the applicant is calling mitigating circumstances which have arisen after his imprisonment can surely not be considered as such. Most importantly, this court has no jurisdiction to reopen a case in which it has passed a lawful sentence to review the same.
9. The applicant also cited section 397 CPC which is since repealed and therefore inoperative.
10. On this court’s failure to apply section 333(2) CPC in sentencing, this court became functus officio once it passed the sentence. The case went to the Court of Appeal which confirmed the sentence. That was the proper place the applicant would have raised the issue. He did not do so. This court cannot review a sentence that has been confirmed by the Court of Appeal.
11. Perhaps, it would be desirable as an issue of law reform for the same to be considered, so that if by inadvertence a trial court fails to apply the provisions of section 333(2) CPC while sentencing, an omission or error that calls for automatic review by the sentencing court. But for now, there is no provision of law to enable this court undertake a review on those grounds.
12. Secondly, this court is definitely not a higher court to which an application for review of that sentence can be made as provided for under Article 50(2)(q) of the Constitution.
13. In the circumstances, I find no merit in the application and the same is dismissed. The applicant to serve his sentence as passed by this High Court and confirmed by the Court of Appeal.
14. Orders accordingly.
Ruling delivered, dated and signed in Open Court and Virtual Platform, Teams this 27th day of January 2025.

HON. ANDAYI W. F.
JUDGE
In the presence of: -
The Applicant in person from Shimo La Tewa prison.
M/s Valerie h/b Mr. Ngiri for the Respondent
Johnson h/b for Etropia - Court Assistant