1. The Applicant was charged with the offence of murder contrary to section 203 as read with section 204 of the penal code. On 22nd November, 2024 after a full trial, Lady Justice Njoki Mwangi convicted the applicant. On 13th December, 2024 she was sentenced to 13 years’ imprisonment. The judge further ordered that the period of 6 years and 1 month she was in custody, be commuted from the sentence in line with the provisions of Section 333(2) of the Criminal Procedure Code.
2. The applicant did not file an appeal to the Court of Appeal. She has elected to file mitigation grounds seeking review of sentence.
3. She stated that she pleaded not guilty and the case went to a full trial and she was found guilty for the offence of manslaughter and sentenced to 13 years’ imprisonment.
4. That the sentence is to run from the date of arrests that is 12th November, 2018 since she could not afford bond and bail terms.
5. That since her arrest she stayed in prison for a period of six years 2 months and she remained with 2 years 6 months to serve.
6. That she humbly prays to this Honourable court to consider her for a non-custodial sentence for the remaining period.
7. That she has an 8 years old son whom she left when he was 2 years old, he is young and still needs mothers love and care.
8. That since her arrest her son has been staying with her parents who are now old and also needs to be taken care of.
9. That during her time in remand she attended school and did her class eight exam and now she was in form two and she will continue her schooling upon release.
10. That she also acquires skills like plaiting, crocheting and embroidery so she also trained in paralegal. This will enable her to start a life when released.
11. That she contrite and remorseful for the offence that she committed, she regrets her action and promise to be a low abiding citizen for the rest of her life.
12. That she is a first offender in the instance case and she has never been involved in any other offence and she promise it shall never happen in future.
13. The Respondents opposed the Application and state the issue of sentence has been dealt with exhaustively therefore this Court does not have jurisdiction to further review the sentence. That The applicant seeks for this court to sit on appeal on the decision made by a Court of concurrent jurisdiction. That this application is an abuse of court process and should not be allowed. They cited the case of Daniel Otieno Oracha vs Republic [2019] eKLR Aburili J held as follows on issue of jurisdiction and abuse of Court process.
“However, this court observes in reiteration that the Petitioner was an appellant in Kisumu HCCRA. No. 79 of 2008 which appeal was dismissed and conviction and sentence of the trial court upheld. The Petitioner, instead of appealing to the Court of Appeal to exhaust the appeal mechanisms, filed this Petition seeking for review of sentence.
14. This court and the High Court at Kisumu are courts of concurrent jurisdiction. That being the case, this court is devoid of any jurisdiction in the exercise of its judicial authority under Article 159 of the Constitution, to review a judgment of a court of concurrent jurisdiction. To do so would be tantamount to sitting as an Appellate court on the judgment of my sister Judge Hon. Abida Ali – Aroni, J.
15. The court called for a sentence review report which shows the offender was a twenty-three years old mother when she was arrested and charged with this offence. She has been through trial which took a period of about six years. Though she was given bond she was unable to find collateral. She is from a polygamous family. Her child has had to be raised by the grandparents. To break the cycle of crime within that family it will be in the best interest of the welfare of her son that he is cared for by his biological mother at his development stage.
16. The report shows that efforts were made to reach out to the secondary victims for reconciliation but they were uncooperative.
17. One of the rehabilitation plans would be mediation between the secondary victims and the inmate. This is in view of the fact they have a shared responsibility for bringing up the child of the primary victim in this matter.
18. The report shows that period she has been in custody she has been under the observation of prison officers. They gave a positive report about her conduct while in custody. She has acquired skills which can enable her provide for her child while supporting her parents who are now elderly.
19. The period remaining for her sentence is less than two years. As a measure of decongestion and to help in her reintegration period it is best to serve the remainder of her sentence out of custody but under supervision.
20. Having considered that the Applicant has been substantially rehabilitated and she has only two years more to serve, I revise her sentence to or the time already spent plus two years’ probation sentence under the prison decongestion policy.
Dated, signed and delivered in Open Court/online through MS TEAMS,
this …15th …day of …April 2025
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of: -
The applicant
Mr Ngiri for the state
Bebora court assistant
……………………….
HON. LADY JUSTICE W. K. MICHENI
JUDGE
2. The applicant did not file an appeal to the Court of Appeal. She has elected to file mitigation grounds seeking review of sentence.
3. She stated that she pleaded not guilty and the case went to a full trial and she was found guilty for the offence of manslaughter and sentenced to 13 years’ imprisonment.
4. That the sentence is to run from the date of arrests that is 12th November, 2018 since she could not afford bond and bail terms.
5. That since her arrest she stayed in prison for a period of six years 2 months and she remained with 2 years 6 months to serve.
6. That she humbly prays to this Honourable court to consider her for a non-custodial sentence for the remaining period.
7. That she has an 8 years old son whom she left when he was 2 years old, he is young and still needs mothers love and care.
8. That since her arrest her son has been staying with her parents who are now old and also needs to be taken care of.
9. That during her time in remand she attended school and did her class eight exam and now she was in form two and she will continue her schooling upon release.
10. That she also acquires skills like plaiting, crocheting and embroidery so she also trained in paralegal. This will enable her to start a life when released.
11. That she contrite and remorseful for the offence that she committed, she regrets her action and promise to be a low abiding citizen for the rest of her life.
12. That she is a first offender in the instance case and she has never been involved in any other offence and she promise it shall never happen in future.
13. The Respondents opposed the Application and state the issue of sentence has been dealt with exhaustively therefore this Court does not have jurisdiction to further review the sentence. That The applicant seeks for this court to sit on appeal on the decision made by a Court of concurrent jurisdiction. That this application is an abuse of court process and should not be allowed. They cited the case of Daniel Otieno Oracha vs Republic [2019] eKLR Aburili J held as follows on issue of jurisdiction and abuse of Court process.
“However, this court observes in reiteration that the Petitioner was an appellant in Kisumu HCCRA. No. 79 of 2008 which appeal was dismissed and conviction and sentence of the trial court upheld. The Petitioner, instead of appealing to the Court of Appeal to exhaust the appeal mechanisms, filed this Petition seeking for review of sentence.
14. This court and the High Court at Kisumu are courts of concurrent jurisdiction. That being the case, this court is devoid of any jurisdiction in the exercise of its judicial authority under Article 159 of the Constitution, to review a judgment of a court of concurrent jurisdiction. To do so would be tantamount to sitting as an Appellate court on the judgment of my sister Judge Hon. Abida Ali – Aroni, J.
15. The court called for a sentence review report which shows the offender was a twenty-three years old mother when she was arrested and charged with this offence. She has been through trial which took a period of about six years. Though she was given bond she was unable to find collateral. She is from a polygamous family. Her child has had to be raised by the grandparents. To break the cycle of crime within that family it will be in the best interest of the welfare of her son that he is cared for by his biological mother at his development stage.
16. The report shows that efforts were made to reach out to the secondary victims for reconciliation but they were uncooperative.
17. One of the rehabilitation plans would be mediation between the secondary victims and the inmate. This is in view of the fact they have a shared responsibility for bringing up the child of the primary victim in this matter.
18. The report shows that period she has been in custody she has been under the observation of prison officers. They gave a positive report about her conduct while in custody. She has acquired skills which can enable her provide for her child while supporting her parents who are now elderly.
19. The period remaining for her sentence is less than two years. As a measure of decongestion and to help in her reintegration period it is best to serve the remainder of her sentence out of custody but under supervision.
20. Having considered that the Applicant has been substantially rehabilitated and she has only two years more to serve, I revise her sentence to or the time already spent plus two years’ probation sentence under the prison decongestion policy.
Dated, signed and delivered in Open Court/online through MS TEAMS,
this …15th …day of …April 2025
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of: -
The applicant
Mr Ngiri for the state
Bebora court assistant
……………………….
HON. LADY JUSTICE W. K. MICHENI
JUDGE