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JudgmentKAI HANJARI MRIRAH VS The Republic3 min read

KAI HANJARI MRIRAH VS The Republic

High Court at Mombasa High Court · · Wendy Micheni


(ORIGINATING FROM CRIMINAL CASE NO. 47 OF 2019  IN THE SENIOR PRINCIPAL MAGISTRATE’S COURT AT SHANZU DELIVERED ON 10TH MAY, 2021.


Preliminaries

  1. The Applicant was charged and convicted after a full trial for the offence of Attempted Defilement contrary to section 8(1) as read with Section 9(1) as read with 9(2) of the Sexual offences Act and sentenced to 7 years imprisonment on 10th May, 2021. The Applicant sought under Section 364 of the Criminal Procedure Code to have his sentence revised to allow it to factor his pre – trial custody period.
  2. According to the Applicant  he was arrested on 8th April 2019 on a charge of attempted defilement contrary to Section 9(1) as read with 9(2) of the Sexual offences Act. He pleaded with this Honourable Court to have his sentence revised to take into account the pre – trial custody period.

Analysis and Determination

  1. Under the provisions of the Constitution of Kenya 2010 and Practice and Procedure Rules 2010 this Court had power to hear and determine infringements of fundamental rights and award remedies. Article 50(2)(q) of the Constitution pursuant to which the applicant approached the Court stipulates that:

(2) Every accused person has the right to a fair trial, which includes the right—

(q) if convicted, to appeal to, or apply for review by, a higher court as prescribed by law.

  1. In that regard, Section and 364(1)(b) of the Criminal Procedure Code stipulates that:

“In the case of a proceeding in 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 ... in the case of any other order other than an order of acquittal alter or reverse the order.”

  1. It is trite law that sentence review, even on appeal, ought not to be easily done; and that certain factors must be present to warrant such interference. Some of these factors were discussed in the case of “Ogalo s/o Owuora – Versus -  Republic [1954] 21 EACA 270”, as follows: -

“…The court does not alter a sentence on the mere ground than if the member of the court had been trying the appellant, they might have passed a somewhat different sentence and it will not ordinarily interfere with the discretion exercised by a trial judge unless as was said in James v Republic [1950] 18 EACA 147, it is evident that the judge has acted upon some wrong principle or overlooked some material factor. To this we would also add a third criterion namely that the sentence is manifestly excessive in view of the circumstances of the case.”

  1. There being no indication in the sentencing notes of the trial court that the applicant’s pre-sentence detention period was taken into account, I am satisfied that the second limb of the application is meritorious. In this regard, I am persuaded by the position taken by Hon. Odunga, J. (as he then was) in “Jona & 87 others – Versus -  Kenya Prison Service & 2 others (Petition 15 of 2020) [2021] KEHC 457 (KLR) (18 January 2021)” that:

“A holistic consideration of the above provisions clearly show that this court has the power to redress a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights and one such violation is the denial or threat of denial of freedom without a just cause such as where the sentence that a person risks serving is in excess of the lawfully prescribed one by failing to comply with section 333(2) of the Criminal Procedure Code.”

Conclusion

  1. In the result, I find merit in the undated Notice of Motion application filed herein. The same is hereby allowed to the extent that the Applicant’s 7-year imprisonment shall take into account the period he spent in custody between 8th April, 2019 when he was arrested and 10th May, 2021 when his sentence was pronounced.

IT IS SO ORDERED ACORDINGLY.

RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS …27th….…………DAY OF …………March……………..…….., 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;

………Mr. Ngiri……………State Counsel;

………………………………………….…Applicant

    KAI HANJARI MRIRAH VS The Republic KAI HANJARI MRIRAH VS The Republic