1. This is an application for review of sentence by the applicant Shaban Salim Ramadhan by way of Notice of Motion undated and supported by an affidavit that is not commissioned or dated. The applicant’s prayers are not very clear. He has expressed them as follows:
a. This the court be pleased to grant the applicant judicial review of his mandatory death sentence which was commuted to life imprisonment by H.E. The President.
b. That the applicant subsequently appealed in the High Court against conviction and sentence but the same was dismissed in HCCR App. No. 445 of 1998 at Mombasa.
2. The application is brought under various provisions of the law being Articles 25(a) and (c) of the Constitution of Kenya, sections 216, 329, 333(2), 354 and 362 of the Criminal Procedure Code (Cap. 75) Laws of Kenya (CPC); section 296(2) of the Penal Code (Cap. 63) Laws of Kenya the Sentencing Policy Guidelines and the decision of the Court of Appeal in Malindi Cr. App. No. 12 of 2021 Julius Kisau Manyeso v. Republic where an indeterminate sentence of life imprisonment was substituted with a fixed term of 40 years imprisonment.
3. In spite of so many grounds listed as supporting the application, the principal issue which the applicant wishes the court to address as I discern from his averments is that he be resentenced to a determinate term of imprisonment.
4. The main ground in support of the application is that the Court of Appeal had declared indeterminate life imprisonment to be unconstitutional in the Julius Kisau Manyeso case on 7/7/2023. The applicant wishes to benefit from that decision through this application for sentence review.
5. The appellant was convicted and sentenced to death for the offence of robbery with violence contrary section 296 (2) of the Penal Code in Mombasa Magistrate’s court Criminal Case No. 1112 of 1998. He subsequently lodged an appeal vide Mombasa High Court Criminal Appeal No. 445 of 1998 which was dismissed. He later lodged an appeal to the Court of Appeal which was equally dismissed.
6. The appellant subsequently benefitted from the Presidential Power of Mercy issued to 195 prisoners on 24/2/2003 where prisoners convicted of the offences of robbery with violence contrary to section 296(2) of the Penal Code, as the applicant herein and murder contrary to section 203 as read with section 204 of the Penal Code and sentenced to death was commuted to life imprisonment. He now seeks to get the benefit of the Court of appeal’s decision that the indeterminate nature of the sentence of life imprisonment is unconstitutional and that the same should be considered to be substituted with a determinate term.
7. In my understanding, review of sentence may be undertaken under the provisions of Article 50(2)(q) of the Constitution which provides that: -
“Every accused person has the right to a fair trial, which includes the right - if convicted, to appeal to, or apply for review by, a higher Court as prescribed by the law.”
8. The applicant herein was convicted by the magistrates court. His appeals to the High Court and the Court of appeal were dismissed on both conviction and sentence. The sentencing court however remains the magistrates court since the higher courts were only confirming the sentence on appeal.
9. In conjunction with that provision, Article 165(6) and (7) of the Constitution which gives the High Court supervisory jurisdiction over subordinate courts can be invoked to call for magistrate’s court file to the High Court for its consideration. It provides as follows:
“(6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.
(7) For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.”
10. Fair administration of justice means that persons facing the same circumstances under the law are treated the same way and in the case of sentencing, to achieve the objective of consistency. Most recently in the case of Evans Nyamari Ayako v. Republic Criminal Appeal No. 22 of 2018 the Court of Appeal determined life imprisonment sentence to mean 30 years imprisonment.
11. In the circumstances I find that the appellant should benefit from the most recent application of the law by the Court of Appeal. By doing so this court is not reviewing his sentence to a lesser sentence but applying the law as stated by the Court of Appeal in the above case. Consequently I find and direct that the life imprisonment to which the appellant’s sentence of death by the magistrates court was commuted shall be for a period of 30 years.
12. According to the Judiciary Sentencing Policy Guidelines:
“The proviso to section 333 (2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody if the convicted person had been in custody during the trial. Failure to do so impacts on the overall period of detention which may result in an excessive punishment that is not proportional to the offence committed. In determining the period of imprisonment that should be served by an offender, the court must take into account the period in which the offender was held in custody during the trial.”
13. Accordingly, under Section 333(2) of the Criminal Procedure Code, the period served in remand from the date he was arraigned for plea taking to-date shall be computed in the term of imprisonment. In the event that he has been in custody for 30 years or more then his term shall be considered as served and he shall be set at liberty forthwith unless otherwise lawfully held. In case the period is less, he shall serve the remainder of his term to completion taking into account any remission of term as he may have earned under Section 46 of the Prison Act (Cap. 90) Laws of Kenya.
14. Orders accordingly.
Ruling delivered, dated and signed in Open Court and Virtual Platform, Teams this 3rd day of December 2024
HON. ANDAYI W. F.
JUDGE
In the presence of: -
The applicant in person from Shimo La Tewa prison.
Ms Nandi holding brief for Mr. Ngiri for the Respondent
Etropia - Court Assistant
a. This the court be pleased to grant the applicant judicial review of his mandatory death sentence which was commuted to life imprisonment by H.E. The President.
b. That the applicant subsequently appealed in the High Court against conviction and sentence but the same was dismissed in HCCR App. No. 445 of 1998 at Mombasa.
2. The application is brought under various provisions of the law being Articles 25(a) and (c) of the Constitution of Kenya, sections 216, 329, 333(2), 354 and 362 of the Criminal Procedure Code (Cap. 75) Laws of Kenya (CPC); section 296(2) of the Penal Code (Cap. 63) Laws of Kenya the Sentencing Policy Guidelines and the decision of the Court of Appeal in Malindi Cr. App. No. 12 of 2021 Julius Kisau Manyeso v. Republic where an indeterminate sentence of life imprisonment was substituted with a fixed term of 40 years imprisonment.
3. In spite of so many grounds listed as supporting the application, the principal issue which the applicant wishes the court to address as I discern from his averments is that he be resentenced to a determinate term of imprisonment.
4. The main ground in support of the application is that the Court of Appeal had declared indeterminate life imprisonment to be unconstitutional in the Julius Kisau Manyeso case on 7/7/2023. The applicant wishes to benefit from that decision through this application for sentence review.
5. The appellant was convicted and sentenced to death for the offence of robbery with violence contrary section 296 (2) of the Penal Code in Mombasa Magistrate’s court Criminal Case No. 1112 of 1998. He subsequently lodged an appeal vide Mombasa High Court Criminal Appeal No. 445 of 1998 which was dismissed. He later lodged an appeal to the Court of Appeal which was equally dismissed.
6. The appellant subsequently benefitted from the Presidential Power of Mercy issued to 195 prisoners on 24/2/2003 where prisoners convicted of the offences of robbery with violence contrary to section 296(2) of the Penal Code, as the applicant herein and murder contrary to section 203 as read with section 204 of the Penal Code and sentenced to death was commuted to life imprisonment. He now seeks to get the benefit of the Court of appeal’s decision that the indeterminate nature of the sentence of life imprisonment is unconstitutional and that the same should be considered to be substituted with a determinate term.
7. In my understanding, review of sentence may be undertaken under the provisions of Article 50(2)(q) of the Constitution which provides that: -
“Every accused person has the right to a fair trial, which includes the right - if convicted, to appeal to, or apply for review by, a higher Court as prescribed by the law.”
8. The applicant herein was convicted by the magistrates court. His appeals to the High Court and the Court of appeal were dismissed on both conviction and sentence. The sentencing court however remains the magistrates court since the higher courts were only confirming the sentence on appeal.
9. In conjunction with that provision, Article 165(6) and (7) of the Constitution which gives the High Court supervisory jurisdiction over subordinate courts can be invoked to call for magistrate’s court file to the High Court for its consideration. It provides as follows:
“(6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.
(7) For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.”
10. Fair administration of justice means that persons facing the same circumstances under the law are treated the same way and in the case of sentencing, to achieve the objective of consistency. Most recently in the case of Evans Nyamari Ayako v. Republic Criminal Appeal No. 22 of 2018 the Court of Appeal determined life imprisonment sentence to mean 30 years imprisonment.
11. In the circumstances I find that the appellant should benefit from the most recent application of the law by the Court of Appeal. By doing so this court is not reviewing his sentence to a lesser sentence but applying the law as stated by the Court of Appeal in the above case. Consequently I find and direct that the life imprisonment to which the appellant’s sentence of death by the magistrates court was commuted shall be for a period of 30 years.
12. According to the Judiciary Sentencing Policy Guidelines:
“The proviso to section 333 (2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody if the convicted person had been in custody during the trial. Failure to do so impacts on the overall period of detention which may result in an excessive punishment that is not proportional to the offence committed. In determining the period of imprisonment that should be served by an offender, the court must take into account the period in which the offender was held in custody during the trial.”
13. Accordingly, under Section 333(2) of the Criminal Procedure Code, the period served in remand from the date he was arraigned for plea taking to-date shall be computed in the term of imprisonment. In the event that he has been in custody for 30 years or more then his term shall be considered as served and he shall be set at liberty forthwith unless otherwise lawfully held. In case the period is less, he shall serve the remainder of his term to completion taking into account any remission of term as he may have earned under Section 46 of the Prison Act (Cap. 90) Laws of Kenya.
14. Orders accordingly.
Ruling delivered, dated and signed in Open Court and Virtual Platform, Teams this 3rd day of December 2024
HON. ANDAYI W. F.
JUDGE
In the presence of: -
The applicant in person from Shimo La Tewa prison.
Ms Nandi holding brief for Mr. Ngiri for the Respondent
Etropia - Court Assistant