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JudgmentMUNYAO KYUNGU VS The Republic2 min read

MUNYAO KYUNGU VS The Republic

High Court at Makueni High Court · · Matheka, Teresia Mumbua

RULING (1)

  1. I have perused and considered the applicant’s application headed “petition” – dated 14/11/2023 seeking review of his sentence.  He states therein that the complainants who are his parents have agreed to reconciliation.
  2. The applicant was charged with the offence of threatening to kill both his parents contrary to section 223(1) of the Penal Code. He  pleaded guilty and was convicted and sentenced to 5 years imprisonment on each count.
  3. There is a pre-sentence report that shows that he was born in 2002, and has been to Shimo La Tewa Borstal Institution. He is the last born in the family and states that the trigger for the offence was the fact that family land was sold, he was not consulted, and that he uttered the words while drunk.
  4. This appeal is for review of his sentence on the basis of reconciliation.
  5. Under Article 159(2) (c ) of the Constitution, the court is required to encourage Alternatives to Dispute Resolution – I would proceed to hear the application and determine it but in light of the application, it is only proper and in the interest of justice that the matter be given an opportunity for the parties herein to deal with the issues leading to the applicant being committed to a borstal institution as a child offender, and now at 20 years old ending up under  a term of imprisonment.
  6. The court is empowered, on appeal, to alter the nature of the sentence, and to do so this court would have to obtain information on sentencing, in this case a social inquiry report.
  7. Under article 159(2)(d) and the parties agency I choosing the mode of accessing justice is acknowledged, and I do not think it is limited to the trial. Even on appeal, the parties are still the owners of the suit albeit in Criminal cases the ODPP is a party on behalf of the state. 
  8. In this case there is no objection to the review of sentence on the grounds set out by the appellant including the review of his sentence on the basis of reconciliation.  This is in recognition of the fact that this is one mode through which all parties can access justice and ensure that the root cause of the crime or conflict with the law is resolved, while restoring relations, establishing proper understanding of the rule of law and maintenance of peace.
  9. Within this court we have the volunteer mediators/counselors working with PACs towards achieving social transformation through access to justice.
  10. To enable the court arrive at a determination I direct that:
      1. A sentence review report be availed to court by PACS within 30 days hereof
      2. In the meantime the court assistant – Ms. Nelima, to coordinate with PACs, the volunteer mediator/counselors to avail the family the necessary  sitting to enable them achieve their intended reconciliation.
      3. The reconciliation report if any be incorporated in the sentence review report by PACs.
      4. Mention within 30 days hereof before the Deputy Registrar for progress report.

Dated, signed and delivered on 24th of July 2024

Mumbua T Matheka

Judge

    MUNYAO KYUNGU VS The Republic MUNYAO KYUNGU VS The Republic