R U L I N G ON REVIEW OF SENTENCE
1. This is an application by Sostem Kipkemoi Tarus for review of sentence. The applicant seeks review of his sentence of 10 years imprisonment for the offence of rape contrary to section 3(1)(a) and (c) as read with sub-section (3) of the Sexual Offences Act (Cap. 63A) Laws of Kenya (SOA). The application is expressed to be brought under section 364 of the Criminal Procedure Code (Cap. 75) Laws of Kenya (CPC).
2. The grounds in support of the application as well as his submissions are that the applicant is a person living with disability currently serving a 10-year term of imprisonment. His appeal to the High Court against conviction and sentence was dismissed on 15/2/2023. He avers that under Articles 54(1), 28 and 29(f) of the Constitution the punishment imposed upon a person living with a disability like him should not be demeaning or degrading. He avers that due to his disability he is experiencing undue and unjustifiable hardship in custody and he is a burden to other inmates. He further avers that his mitigation at trial was not considered and he prays that this court considers the same. He avers that the failure to consider his mitigation violated his right to a fair trial as provided for under Article 50(2) of the Constitution and which is a non-derogable right under Article 25(c) of the Constitution.
3. He now brings the present application which is undated and supported by what is supposed to be an affidavit but which is not commissioned by a commissioner for oaths but which all the same I have considered the depositions as the grounds in support of the application.
4. The Magistrate’s court record of proceedings, the judgment and sentence and the record of proceedings and judgment of the High Court on appeal were made available to me and I have considered them.
5. The applicant submits that this court should receive and consider his mitigation as outlined in his submissions and adjust his sentence on the basis of the same as is contemplated by section 216 CPC. He has set out what he terms his mitigation that he wishes this court to consider. The applicant further cited the decision of the Court of Appeal at Swabir Bukhet Labhed v Republic [2019] KECA 835 (KLR) where it was held that it is common ground that where a sentence is couched under the prefix ‘shall be liable to’ the same connotes that the sentence prescribed herein is not a mandatory sentence rather it is the prescribed maximum sentence and therefore the sentencing court is clothed with discretion to determine the appropriate sentence taking into account the surrounding circumstances of each case.
6. I have considered the application by the applicant and the grounds upon which it is based as well as his submissions.
7. Article 50(2)(q) of the Constitution 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. Article 165(6) of the Constitution empowers the High Court to exercise supervisory jurisdiction over subordinate Courts. The Criminal Procedure Code (Cap. 75) Laws of Kenya is the Statute that expounds on this jurisdiction.
9. Section 362 of the Criminal Procedure (Cap 75) Laws of Kenya provides:
“The High Court may call for and examine the record of any criminal proceedings before any subordinate Court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of any subordinate Court.”
10. Section 364 CPC cited by the applicant in this matter, provides for the powers of the High Court on revision thus:
(1) In the case of a proceeding in a 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—
(a) in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358, and may enhance the sentence;
(b) in the case of any other order other than an order of acquittal, alter or reverse the order.
(c) …
11. I have considered the proceedings on sentencing by the trial court as well as the offence charged and I am unable to find any incorrectness, illegality or impropriety in the sentence passed against the applicant and neither do I find any irregularity in the proceedings.
12. In any case, this court already considered the matter on appeal and made orders thereon confirming the sentence. This court on appeal considered the issue of sentence in paragraphs 24, 25 and 26. On the issue of the trial court not considering his mitigation and the fact that he is living with a disability this court said thus:
“…the trial court addressed itself to the circumstances of the case and took into account the mitigation by the appellant, his physical disability and the vulnerability of the complainant and considering this, sentenced the appellant to 10 years. … I therefore see nothing to warrant a review of the sentence.”
13. It is apparent that this court was satisfied that the trial court fully addressed itself to the mitigation raised by the applicant and took into account the issue of the applicant living with a disability before passing sentence. The applicant’s averment and submission that the same was not done is therefore not being honest.
14. Consequently, this court cannot go back to consider the incorrectness, illegality or impropriety in the sentence of the trial court at this point the having been considered at the time of the appeal. In any case, it already found that there was none. The applicant attempts to clothe his application as a violation of his constitutional rights but there is no reasons proffered to back up that argument. The sentence imposed upon the applicant was the minimum prescribed for the offence and the same cannot be termed as constitutional. The constitution makes no provision for a person living with a disability to be given a sentence outside the prescribed minimum under the law. The applicant should in fact count himself lucky that the trial court appears not to have considered that the complainant was suffering a mental disability at the time which was an aggravating circumstance and this court on appeal did not enhance his sentence of imprisonment given that evidence at trial.
15. In the circumstances, the sentence imposed by the trial court being legal I find no merit in the application and the same is dismissed. The applicant to serve his sentence of 10 years as confirmed by the High Court on appeal.
16. Orders accordingly.
Ruling delivered, dated and signed in Open Court and Virtual Platform, Teams this 13th day of February 2025.
HON. ANDAYI W. F.
JUDGE
In the presence of: -
The applicant in person from Manyani Maximum security prison.
Vallerie (M/s) h/b for Mr. Ngiri for the Respondent
Johnson h/b for Etropia - Court Assistant
1. This is an application by Sostem Kipkemoi Tarus for review of sentence. The applicant seeks review of his sentence of 10 years imprisonment for the offence of rape contrary to section 3(1)(a) and (c) as read with sub-section (3) of the Sexual Offences Act (Cap. 63A) Laws of Kenya (SOA). The application is expressed to be brought under section 364 of the Criminal Procedure Code (Cap. 75) Laws of Kenya (CPC).
2. The grounds in support of the application as well as his submissions are that the applicant is a person living with disability currently serving a 10-year term of imprisonment. His appeal to the High Court against conviction and sentence was dismissed on 15/2/2023. He avers that under Articles 54(1), 28 and 29(f) of the Constitution the punishment imposed upon a person living with a disability like him should not be demeaning or degrading. He avers that due to his disability he is experiencing undue and unjustifiable hardship in custody and he is a burden to other inmates. He further avers that his mitigation at trial was not considered and he prays that this court considers the same. He avers that the failure to consider his mitigation violated his right to a fair trial as provided for under Article 50(2) of the Constitution and which is a non-derogable right under Article 25(c) of the Constitution.
3. He now brings the present application which is undated and supported by what is supposed to be an affidavit but which is not commissioned by a commissioner for oaths but which all the same I have considered the depositions as the grounds in support of the application.
4. The Magistrate’s court record of proceedings, the judgment and sentence and the record of proceedings and judgment of the High Court on appeal were made available to me and I have considered them.
5. The applicant submits that this court should receive and consider his mitigation as outlined in his submissions and adjust his sentence on the basis of the same as is contemplated by section 216 CPC. He has set out what he terms his mitigation that he wishes this court to consider. The applicant further cited the decision of the Court of Appeal at Swabir Bukhet Labhed v Republic [2019] KECA 835 (KLR) where it was held that it is common ground that where a sentence is couched under the prefix ‘shall be liable to’ the same connotes that the sentence prescribed herein is not a mandatory sentence rather it is the prescribed maximum sentence and therefore the sentencing court is clothed with discretion to determine the appropriate sentence taking into account the surrounding circumstances of each case.
6. I have considered the application by the applicant and the grounds upon which it is based as well as his submissions.
7. Article 50(2)(q) of the Constitution 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. Article 165(6) of the Constitution empowers the High Court to exercise supervisory jurisdiction over subordinate Courts. The Criminal Procedure Code (Cap. 75) Laws of Kenya is the Statute that expounds on this jurisdiction.
9. Section 362 of the Criminal Procedure (Cap 75) Laws of Kenya provides:
“The High Court may call for and examine the record of any criminal proceedings before any subordinate Court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of any subordinate Court.”
10. Section 364 CPC cited by the applicant in this matter, provides for the powers of the High Court on revision thus:
(1) In the case of a proceeding in a 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—
(a) in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358, and may enhance the sentence;
(b) in the case of any other order other than an order of acquittal, alter or reverse the order.
(c) …
11. I have considered the proceedings on sentencing by the trial court as well as the offence charged and I am unable to find any incorrectness, illegality or impropriety in the sentence passed against the applicant and neither do I find any irregularity in the proceedings.
12. In any case, this court already considered the matter on appeal and made orders thereon confirming the sentence. This court on appeal considered the issue of sentence in paragraphs 24, 25 and 26. On the issue of the trial court not considering his mitigation and the fact that he is living with a disability this court said thus:
“…the trial court addressed itself to the circumstances of the case and took into account the mitigation by the appellant, his physical disability and the vulnerability of the complainant and considering this, sentenced the appellant to 10 years. … I therefore see nothing to warrant a review of the sentence.”
13. It is apparent that this court was satisfied that the trial court fully addressed itself to the mitigation raised by the applicant and took into account the issue of the applicant living with a disability before passing sentence. The applicant’s averment and submission that the same was not done is therefore not being honest.
14. Consequently, this court cannot go back to consider the incorrectness, illegality or impropriety in the sentence of the trial court at this point the having been considered at the time of the appeal. In any case, it already found that there was none. The applicant attempts to clothe his application as a violation of his constitutional rights but there is no reasons proffered to back up that argument. The sentence imposed upon the applicant was the minimum prescribed for the offence and the same cannot be termed as constitutional. The constitution makes no provision for a person living with a disability to be given a sentence outside the prescribed minimum under the law. The applicant should in fact count himself lucky that the trial court appears not to have considered that the complainant was suffering a mental disability at the time which was an aggravating circumstance and this court on appeal did not enhance his sentence of imprisonment given that evidence at trial.
15. In the circumstances, the sentence imposed by the trial court being legal I find no merit in the application and the same is dismissed. The applicant to serve his sentence of 10 years as confirmed by the High Court on appeal.
16. Orders accordingly.
Ruling delivered, dated and signed in Open Court and Virtual Platform, Teams this 13th day of February 2025.
HON. ANDAYI W. F.
JUDGE
In the presence of: -
The applicant in person from Manyani Maximum security prison.
Vallerie (M/s) h/b for Mr. Ngiri for the Respondent
Johnson h/b for Etropia - Court Assistant