(Being an application for adjustment of sentence of 25 years imprisonment arising from original conviction and sentence in Kwale Magistrates Court Cr. Case No. 99 of 2017 and Judgment in Mombasa HC Cr. Appeal No.20 of 2019 Hon. Lady Justice A. Ong’ijo)
R U L I N G ON REVIEW OF SENTENCE
1. This is an application for review of sentence by the applicant Ching’ang’I Nyanje. The applicant seeks adjustment of his sentence of 25 years imprisonment. 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 are that the applicant is currently serving a 25-year term of imprisonment at Shimo La Tewa maximum security prison for the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act (Cap. 63A) Laws of Kenya (SOA). His appeal to the High Court against conviction and sentence was dismissed on 9/12/2021.
3. I have had the benefit of perusing the proceedings, judgment and sentence of the Magistrates Court where he was tried to confirm the offence for which he was convicted and sentenced and the record and judgment of the High Court on appeal.
4. The applicant prays that this court should receive and consider his mitigation submissions and adjust his sentence on the basis of the same. He submits that mitigation does not only apply to matters that are in the trial process before the initial sentence is meted upon the defendant but it extends to that stage in the proceedings when the convicted person is serving a sentence, in an appeal or any application for review of the same proceedings before court. He cites the Black’s Law Free Online Dictionary, 2nd edition on the definition of mitigation and further that this is what is contemplated by sections 216 CPC and 329 CPC and prays that mitigation is the lessening of the intensity of anguish and the period of extreme circumstances that he has been subjected to for over six (6) years. He prays further that this court in considering his application for sentence review will consider his circumstances prior to the offence, at the time of the trial and subsequent to conviction. He has set out what he terms mitigating circumstances that he wishes this court to consider. He submits finally that his incarceration thus far has met the objectives of sentencing as set out under the Sentencing Policy Guidelines.
5. I have considered the application by the applicant and the grounds upon which it is based as well as the quite lengthy submissions filed urged the matter.
6. 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.
7. 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.
8. 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.”
9. 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) …
10. I have considered the proceedings on sentencing by the trial court as well as the offence charged and bearing in mind the above provisions of the law I note that the applicant has not alleged any incorrectness, illegality or impropriety in the sentence passed against the applicant nor any irregularity in the proceedings. My consideration of the record of the trial court does not bring out any of these circumstances either.
11. In the case of Bernard Kimani Gacheru vs Republic [2002] eKLR the Court of Appeal considering the issue of review of a sentence by the trial court stated as follows:
“It is now settled law, following several authorities by this court and by the High court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already states is shown to exist.”
12. In this case none of the circumstances outlined above exists. The applicant simply wants the court to consider that he is advanced in age, now 72 years old, that he has been in prison for six years, that his family is suffering due to his absence and therefore he should be released from prison. The applicant is in other words appealing to this court’s sympathy to vary the sentence imposed by the trial court. The Supreme Court in the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) has recently stated regarding the jurisdiction of an appellate court when dealing with sentences that:
“We must also reaffirm that, although sentencing is an exercise of judicial discretion, it is Parliament and not the Judiciary that sets the parameters of sentencing for each crime in statute. As such, striking down a sentence provided for in Statute, must be based not only on evidence and sound legal principles but on an in-depth consideration of public interest and the principles of public law that informed the making of that specific law. A judicial decision of that nature cannot be based on private opinions, sentiments, sympathy or benevolence (emphasis mine). It ought not to be arbitrary, whimsical or capricious. However, where a sentence is set in Statute, the Legislature has already determined the course, unless it is declared unconstitutional, based on sound principles and clear guidelines, upon which the Legislature should then act. Suffice to say, where Parliament enacts legislation, the Judicial arm should adjudicate disputes based on the provisions of the law. However, in the special circumstances of a declaration of unconstitutionality, the process is reversed.”
13. Following these decisions, I find that this court lacks the jurisdiction to review a sentence and to reduce it to one outside that provided for by the statute, that is, a minimum of 20 years imprisonment, by way of releasing the applicant to go without completing the term of 25 years imprisonment as imposed by the trial court. The trial court considered his mitigation and was satisfied that 25 years and not 20 years was appropriate in the circumstances.
14. In any case, this court already considered the matter on appeal and made orders thereon confirming the sentence. It cannot be that the court can go back to consider the incorrectness, illegality or impropriety in the sentence of the trial court at this point. That is presumed to have been considered at the time of the appeal.
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 the sentence of 25 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 28th day of January 2025.
HON. ANDAYI W. F.
JUDGE
In the presence of: -
The applicant in person from Shimo La Tewa prison.
Vallerie (M/s) h/b for Mr. Ngiri for the Respondent
Johnson h/b for Etropia - Court Assistant
R U L I N G ON REVIEW OF SENTENCE
1. This is an application for review of sentence by the applicant Ching’ang’I Nyanje. The applicant seeks adjustment of his sentence of 25 years imprisonment. 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 are that the applicant is currently serving a 25-year term of imprisonment at Shimo La Tewa maximum security prison for the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act (Cap. 63A) Laws of Kenya (SOA). His appeal to the High Court against conviction and sentence was dismissed on 9/12/2021.
3. I have had the benefit of perusing the proceedings, judgment and sentence of the Magistrates Court where he was tried to confirm the offence for which he was convicted and sentenced and the record and judgment of the High Court on appeal.
4. The applicant prays that this court should receive and consider his mitigation submissions and adjust his sentence on the basis of the same. He submits that mitigation does not only apply to matters that are in the trial process before the initial sentence is meted upon the defendant but it extends to that stage in the proceedings when the convicted person is serving a sentence, in an appeal or any application for review of the same proceedings before court. He cites the Black’s Law Free Online Dictionary, 2nd edition on the definition of mitigation and further that this is what is contemplated by sections 216 CPC and 329 CPC and prays that mitigation is the lessening of the intensity of anguish and the period of extreme circumstances that he has been subjected to for over six (6) years. He prays further that this court in considering his application for sentence review will consider his circumstances prior to the offence, at the time of the trial and subsequent to conviction. He has set out what he terms mitigating circumstances that he wishes this court to consider. He submits finally that his incarceration thus far has met the objectives of sentencing as set out under the Sentencing Policy Guidelines.
5. I have considered the application by the applicant and the grounds upon which it is based as well as the quite lengthy submissions filed urged the matter.
6. 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.
7. 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.
8. 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.”
9. 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) …
10. I have considered the proceedings on sentencing by the trial court as well as the offence charged and bearing in mind the above provisions of the law I note that the applicant has not alleged any incorrectness, illegality or impropriety in the sentence passed against the applicant nor any irregularity in the proceedings. My consideration of the record of the trial court does not bring out any of these circumstances either.
11. In the case of Bernard Kimani Gacheru vs Republic [2002] eKLR the Court of Appeal considering the issue of review of a sentence by the trial court stated as follows:
“It is now settled law, following several authorities by this court and by the High court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already states is shown to exist.”
12. In this case none of the circumstances outlined above exists. The applicant simply wants the court to consider that he is advanced in age, now 72 years old, that he has been in prison for six years, that his family is suffering due to his absence and therefore he should be released from prison. The applicant is in other words appealing to this court’s sympathy to vary the sentence imposed by the trial court. The Supreme Court in the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) has recently stated regarding the jurisdiction of an appellate court when dealing with sentences that:
“We must also reaffirm that, although sentencing is an exercise of judicial discretion, it is Parliament and not the Judiciary that sets the parameters of sentencing for each crime in statute. As such, striking down a sentence provided for in Statute, must be based not only on evidence and sound legal principles but on an in-depth consideration of public interest and the principles of public law that informed the making of that specific law. A judicial decision of that nature cannot be based on private opinions, sentiments, sympathy or benevolence (emphasis mine). It ought not to be arbitrary, whimsical or capricious. However, where a sentence is set in Statute, the Legislature has already determined the course, unless it is declared unconstitutional, based on sound principles and clear guidelines, upon which the Legislature should then act. Suffice to say, where Parliament enacts legislation, the Judicial arm should adjudicate disputes based on the provisions of the law. However, in the special circumstances of a declaration of unconstitutionality, the process is reversed.”
13. Following these decisions, I find that this court lacks the jurisdiction to review a sentence and to reduce it to one outside that provided for by the statute, that is, a minimum of 20 years imprisonment, by way of releasing the applicant to go without completing the term of 25 years imprisonment as imposed by the trial court. The trial court considered his mitigation and was satisfied that 25 years and not 20 years was appropriate in the circumstances.
14. In any case, this court already considered the matter on appeal and made orders thereon confirming the sentence. It cannot be that the court can go back to consider the incorrectness, illegality or impropriety in the sentence of the trial court at this point. That is presumed to have been considered at the time of the appeal.
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 the sentence of 25 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 28th day of January 2025.
HON. ANDAYI W. F.
JUDGE
In the presence of: -
The applicant in person from Shimo La Tewa prison.
Vallerie (M/s) h/b for Mr. Ngiri for the Respondent
Johnson h/b for Etropia - Court Assistant