Preliminaries
Before this Court is an application for review of sentence by this Honourable Court. The Applicant was found guilty of the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code and on 23 rd June, 2022 was convicted. On 3 rd August, 2022 he was sentenced to 15 years imprisonment.
The Applicant’s mitigating factors were that:-
He was involved in a road accident in the year 2015 in which he sustained serious injuries leaving him with a fractured left leg, dislocation in the backbone and broken right arm.
He had been undergoing physiotherapy on his spinal cord ever since the accident, a fact that had made his stay in the Prison very agonizing particularly given the challenging medical facilities in prison.
He had been unwell during the long stay in the penal institution with instances of going in and out of the prison health facility.
He was a first time offender
He was 54 years old and of good conduct and that he had a family consisting of a house wife, three children and his elderly sick mother who depended on him and were suffering now that he had been incarcerated
The Applicant was charged with the offence of murder contrary to Section 203 as read with 204 of the Penal Code Cap 63 of the Laws of Kenya. The Particulars of the offence being that on the 18 th day of December, 2019 at Tononoka area in Mvita Sub County within Mombasa County murdered JOHN MUNGAI KINGA .
Analysis and Determination
Considering the pleadings of the parties and the submissions by the parties which I have considered in my decision, it is my view that the main issue for determination is whether:- This court has jurisdiction to entertain the instant application.
The applicant is entitled to the orders for review of sentence under Section 333(2) of the Criminal Procedure Code.
Re-sentencing is neither a hearing de novo nor an appeal. It is a proceeding undertaken within the court’s power to review sentence. The court will ordinarily check the legality or propriety or appropriateness of the sentence. The relevant considerations in the proceeding inter alia, are the penalty law, mitigating or aggravating factors, and the objects of punishments. In re-sentencing proceedings, conviction is not in issue.
Section 333(2) of the Criminal Procedure Code provides:-
“Subject to the provisions of Section 38 of the Penal Code, every sentence shall be deemed to commence from and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.
Provided that where the person sentenced under sub section (1) has prior, to such sentence shall take account of the period spent in custody.”
It is clear from the above proviso that the law requires courts while sentencing do take into account the period the accused spent in custody. The same court in “Bethwel Wilson Kibor – Versus - Republic [2009]eKLR” expressed itself as follows:-
“By proviso to section 333(2) of the Criminal Procedure Code where a person sentenced has been held in custody prior to such sentence, the sentence shall take into account of the period spent in custody. Ombija J, who sentenced the appellant did not specifically state that he had taken into account the 9 years period that the appellant had been in custody. The appellant told us that as at 22 nd September 2009 he had been in custody for 10 years and one month. We think that all these incidents ought to have been taken into account in assessing sentence. In view of the foregoing, we are satisfied that the appellant has been sufficiently punished. We therefore allow this appeal and reduce the sentence to the period that the appellant has already served. He is accordingly to be set free forthwith unless otherwise lawfully held.”
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 trail. 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.”
Article 50(2) of the Constitution gives the right to every accused person of a fair trial which includes: - “If convicted, to appeal to, or to apply for review by, a higher court as prescribed by law.”
Has the applicant placed such material before court to warrant review? Are the reasons advanced by the applicant herein sufficient to get the benefit of reduced sentence or non-custodial sentence? On the issue of sentencing an offender, the sentence meted out on an accused person must commensurate to the moral blameworthiness of the offender and that the court should look at the facts and the circumstances of the case in its entirely before settling for any given sentence.
The Court of Appeal in “Thomas Mwambu Wenyi – Versus - Republic (2017) eKLR” cited the decision of the Supreme Court of India in “Alister Anthony Pereira – Versus - State of Mahareshtra at paragraph 70-71” where the court held the following on sentencing: -
“Sentencing is an important task in the matter of crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no straight jacket formula for sentencing an accused person on proof of crime. The courts have evolved certain principles: twin objective of sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstance of each case and the courts must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances. The principle of proportionality in sentencing a crime doer is well entrenched in criminal jurisprudence. As a matter of law, proportion between crime and punishment bears most relevant influence in determination of sentencing the crime doer. The court has to take into consideration all aspects including social interest and consciousness of the society for award of appropriate sentence.”
The Supreme Court decision in Francis Karioko Muruatetu & Another -vs- Republic [2017] eKLR and subsequent decisions by the Court of Appeal have ruled that the mandatory minimum sentences no longer have a place in our jurisdiction because they deprive the trial court of its discretion to mete out a sentence that is commensurate with the gravity of the circumstances surrounding the commission of the offence. The Supreme Court held that a trial court ought to consider the following before passing sentence: - Age of the offender,
Whether or not the offender is a first offender,
Whether the offender pleaded guilty,
The character and record of the offender,
Commission of the offence in response to gender-based violence,
Remorsefulness of the offender,
The possibility of reform and social re-adaptation of the offender,
Any other factor that the court considers relevant.
The Judiciary Sentencing Policy Guidelines lists the objectives of sentencing at page 15 paragraph 4.1 as follows;
1. Retribution: To punish the offender for his/her criminal conduct in a just manner.
2. Deterrence: To deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences.
3. Rehabilitation: To enable the offender reform from his criminal disposition and become a law-abiding person.
4. Restorative Justice: To address the needs arising from the criminal conduct such as loss and damages. Criminal conduct ordinarily occasions victims, communities’ and offenders’ needs and justice demand that these are met. Further, to promote a sense of responsibility through the offender’s contribution towards meeting the victims’ needs.
5. Community protection: To protect the community by incapacitating the offender.
6. Denunciation: To communicate the community’s condemnation of the criminal conduct.
There is a fundamental and immutable principle of sentencing that this sentence imposed must ultimately reflect the objective seriousness of the offence committed and there must be a reasonable proportionality between the sentence passed in the circumstances of the crime committed. One of the purposes of punishment is to ensure that an offender is adequately punished…a further purpose of punishment is to denounce the conduct of the offender.
Section 382 of the Criminal Procedure Code Act provides for instances where finding or sentence are reversible by reason of error or omission in charge or other proceedings. It states that:
“Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice:
Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.”
I have considered the application and all the information available. It is thus crystal clear that the learned Judge took into consideration the mitigating factors while sentencing the Applicant herein and considering the maximum sentence under this offence is life imprisonment; I believe the Applicant was highly considered to have be sentenced as he was by Lady Justice Ong’ijo.
The court notes that there were no medical reports to support the allegations of ill healthI. There was no progress report from the Shimo la Tewa prison to show how he is progressing or to support the claim of ill health .
I also called for a sentence review and none was filed.
Under the circumstances I have no grounds upon which I can revisit the sentence even on humanitarian grounds on the right to dignity.
I am therefore inclined not to interfere with the 15 years’ imprisonment imposed to the Applicant. The undated Notice of Motion application is hereby found to lack merit and is dismissed with no further orders.
IT IS SO ORDERED ACORDINGLY.
RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS ……25th.…………DAY OF …………………JUNE……..…….., 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 SIRIMA……………State Counsel;
………………………………………….…Applicant.
Before this Court is an application for review of sentence by this Honourable Court. The Applicant was found guilty of the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code and on 23 rd June, 2022 was convicted. On 3 rd August, 2022 he was sentenced to 15 years imprisonment.
The Applicant’s mitigating factors were that:-
He was involved in a road accident in the year 2015 in which he sustained serious injuries leaving him with a fractured left leg, dislocation in the backbone and broken right arm.
He had been undergoing physiotherapy on his spinal cord ever since the accident, a fact that had made his stay in the Prison very agonizing particularly given the challenging medical facilities in prison.
He had been unwell during the long stay in the penal institution with instances of going in and out of the prison health facility.
He was a first time offender
He was 54 years old and of good conduct and that he had a family consisting of a house wife, three children and his elderly sick mother who depended on him and were suffering now that he had been incarcerated
The Applicant was charged with the offence of murder contrary to Section 203 as read with 204 of the Penal Code Cap 63 of the Laws of Kenya. The Particulars of the offence being that on the 18 th day of December, 2019 at Tononoka area in Mvita Sub County within Mombasa County murdered JOHN MUNGAI KINGA .
Analysis and Determination
Considering the pleadings of the parties and the submissions by the parties which I have considered in my decision, it is my view that the main issue for determination is whether:- This court has jurisdiction to entertain the instant application.
The applicant is entitled to the orders for review of sentence under Section 333(2) of the Criminal Procedure Code.
Re-sentencing is neither a hearing de novo nor an appeal. It is a proceeding undertaken within the court’s power to review sentence. The court will ordinarily check the legality or propriety or appropriateness of the sentence. The relevant considerations in the proceeding inter alia, are the penalty law, mitigating or aggravating factors, and the objects of punishments. In re-sentencing proceedings, conviction is not in issue.
Section 333(2) of the Criminal Procedure Code provides:-
“Subject to the provisions of Section 38 of the Penal Code, every sentence shall be deemed to commence from and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.
Provided that where the person sentenced under sub section (1) has prior, to such sentence shall take account of the period spent in custody.”
It is clear from the above proviso that the law requires courts while sentencing do take into account the period the accused spent in custody. The same court in “Bethwel Wilson Kibor – Versus - Republic [2009]eKLR” expressed itself as follows:-
“By proviso to section 333(2) of the Criminal Procedure Code where a person sentenced has been held in custody prior to such sentence, the sentence shall take into account of the period spent in custody. Ombija J, who sentenced the appellant did not specifically state that he had taken into account the 9 years period that the appellant had been in custody. The appellant told us that as at 22 nd September 2009 he had been in custody for 10 years and one month. We think that all these incidents ought to have been taken into account in assessing sentence. In view of the foregoing, we are satisfied that the appellant has been sufficiently punished. We therefore allow this appeal and reduce the sentence to the period that the appellant has already served. He is accordingly to be set free forthwith unless otherwise lawfully held.”
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 trail. 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.”
Article 50(2) of the Constitution gives the right to every accused person of a fair trial which includes: - “If convicted, to appeal to, or to apply for review by, a higher court as prescribed by law.”
Has the applicant placed such material before court to warrant review? Are the reasons advanced by the applicant herein sufficient to get the benefit of reduced sentence or non-custodial sentence? On the issue of sentencing an offender, the sentence meted out on an accused person must commensurate to the moral blameworthiness of the offender and that the court should look at the facts and the circumstances of the case in its entirely before settling for any given sentence.
The Court of Appeal in “Thomas Mwambu Wenyi – Versus - Republic (2017) eKLR” cited the decision of the Supreme Court of India in “Alister Anthony Pereira – Versus - State of Mahareshtra at paragraph 70-71” where the court held the following on sentencing: -
“Sentencing is an important task in the matter of crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no straight jacket formula for sentencing an accused person on proof of crime. The courts have evolved certain principles: twin objective of sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstance of each case and the courts must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances. The principle of proportionality in sentencing a crime doer is well entrenched in criminal jurisprudence. As a matter of law, proportion between crime and punishment bears most relevant influence in determination of sentencing the crime doer. The court has to take into consideration all aspects including social interest and consciousness of the society for award of appropriate sentence.”
The Supreme Court decision in Francis Karioko Muruatetu & Another -vs- Republic [2017] eKLR and subsequent decisions by the Court of Appeal have ruled that the mandatory minimum sentences no longer have a place in our jurisdiction because they deprive the trial court of its discretion to mete out a sentence that is commensurate with the gravity of the circumstances surrounding the commission of the offence. The Supreme Court held that a trial court ought to consider the following before passing sentence: - Age of the offender,
Whether or not the offender is a first offender,
Whether the offender pleaded guilty,
The character and record of the offender,
Commission of the offence in response to gender-based violence,
Remorsefulness of the offender,
The possibility of reform and social re-adaptation of the offender,
Any other factor that the court considers relevant.
The Judiciary Sentencing Policy Guidelines lists the objectives of sentencing at page 15 paragraph 4.1 as follows;
1. Retribution: To punish the offender for his/her criminal conduct in a just manner.
2. Deterrence: To deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences.
3. Rehabilitation: To enable the offender reform from his criminal disposition and become a law-abiding person.
4. Restorative Justice: To address the needs arising from the criminal conduct such as loss and damages. Criminal conduct ordinarily occasions victims, communities’ and offenders’ needs and justice demand that these are met. Further, to promote a sense of responsibility through the offender’s contribution towards meeting the victims’ needs.
5. Community protection: To protect the community by incapacitating the offender.
6. Denunciation: To communicate the community’s condemnation of the criminal conduct.
There is a fundamental and immutable principle of sentencing that this sentence imposed must ultimately reflect the objective seriousness of the offence committed and there must be a reasonable proportionality between the sentence passed in the circumstances of the crime committed. One of the purposes of punishment is to ensure that an offender is adequately punished…a further purpose of punishment is to denounce the conduct of the offender.
Section 382 of the Criminal Procedure Code Act provides for instances where finding or sentence are reversible by reason of error or omission in charge or other proceedings. It states that:
“Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice:
Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.”
I have considered the application and all the information available. It is thus crystal clear that the learned Judge took into consideration the mitigating factors while sentencing the Applicant herein and considering the maximum sentence under this offence is life imprisonment; I believe the Applicant was highly considered to have be sentenced as he was by Lady Justice Ong’ijo.
The court notes that there were no medical reports to support the allegations of ill healthI. There was no progress report from the Shimo la Tewa prison to show how he is progressing or to support the claim of ill health .
I also called for a sentence review and none was filed.
Under the circumstances I have no grounds upon which I can revisit the sentence even on humanitarian grounds on the right to dignity.
I am therefore inclined not to interfere with the 15 years’ imprisonment imposed to the Applicant. The undated Notice of Motion application is hereby found to lack merit and is dismissed with no further orders.
IT IS SO ORDERED ACORDINGLY.
RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS ……25th.…………DAY OF …………………JUNE……..…….., 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 SIRIMA……………State Counsel;
………………………………………….…Applicant.