Preliminaries
- Before this Court is an undated Notice of Motion application which sought for the following:-
- THAT this Honourable Court be pleased to grant the Applicant judicial review of his 20-year sentence imposed upon the Applicant by Miscellaneous Application No. E098 OF 2022 to a non – custodial sentence as provided for under Section 4(1) and (2) of the Probation of Offender’s Act Cap 64 Laws of Kenya.
- THAT the applicant has remained with less than three (3) yeas of his sentence which he begs the Honourable Court to remit to a non – custodial sentence.
- THAT it is arguable in light of Section 4(1) and (2) of the Probation of Offenders’ Act Cap 64 Laws of Kenya, Sexual offenders qualify to be considered for probation.
- The grounds of the application on the face of it and in the supporting affidavit were that:-
- The Applicant contended Section 354 of the Criminal Procedure Code entitles any person who had undergone a criminal trial to appeal or seek a judicial review from the High Court.
- The Applicant stated that he was heard for purposes of sentencing upon conviction but such mitigation circumstances such as home surroundings and extenuating circumstances in which the offence was committed was not considered as provided for under Section 4(1) and (2) of the Probation of Offenders Act.
- The Applicant contended that to remove from the Courts, the power to grant a non – custodial sentence as provided for under Section 4(1) and (2) of the Probation of Offenders Act on sexual offences merely because the lower court or any other Court for that matter are not imposing sensible sentences amount to a judicial coup.
- The Applicant contended that all the tiers of the judiciary could not be said to be wrong, and if they arrive at the same decision then everyone must live with that decision however unpalatable it might appear since according to the law, that is the right decision.
- The Applicant averred that at the point when he was being sentenced he did not have any criminal record, a considerable mitigating factor in his case.
- The Applicant was relatively young and showed remorse ahead of his sentencing by the trial court.
- The Applicant was substantially remorseful for the action that led to serve the term of 20 years imprisonment.
- The Applicant contended that the High Court had wide powers under Section 354 of the Criminal Procedure Code to review any custodial sentence to a non – custodial sentence and if possible set aside the sentence imposed upon the Applicant.
- Certiorari to move this Honourable Court to review the 20 years imprisonment custodial sentence to a non – custodial sentence as provided for under Section 4(1) and (2) of the Probation of Offenders Act Cap 64 of Laws of Kenya.
- The Applicant was charged with the offence of Defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act No. 2 of 2006.
- The Court received a Sentence Review Report dated 28th October, 2024 by Boytone Omondi where the officer indicated that the Applicant was remorseful for the offence and indicated that he had learnt his lesson for the first time he had been in custody. He further confided to have reflected upon his life and committed to be a law abiding in the society.
- According to the officer the community had no reported concern in the community and had been living a normal life. There were no likely reintegration and resettlement challenges in the community upon release from custody. In conclusion the officer intimated that the Applicant had served a considerable time in prison indicating to had learnt his lesson for the time he had been in custody and committed to live more responsibility in the society. He prayed the court to commute the remainder of his sentence into a non – custodial order, so as to attend to the needs of his family.
- The Applicant had no reported cases of prison misconduct, having undergone self-reflection on his behavior so as to live a more functional life in the society. He had demonstrated remorse and prayed that the Court forgives him committing not to offend the law. He had supportive family members who had demonstrated to help in his resettlement and reintegration at home, further assisting him to get an employment activity for self – sustenance. The family members were concerned of his deteriorating health and prayed that the court grant him a non-custodial sentence for the remainder of his sentence so as to get proper medication.
- The officer recommended a non – custodial sentence for the remainder of the Applicant’s sentence.
Analysis and Determination
- Considering the pleadings of the parties, it is my view that the main issue for determination is whether the undated application filed is merited. The Supreme Court considered the issue of review of judgements and orders in Fredrick Otieno Outa v Jared Odoyo Okello & 3 others [2017] eKLR and held that:
“…we hold that as a general rule, the Supreme Court has no jurisdiction to sit on appeal over its own decisions, nor to review its decisions, other than in the manner already stated in paragraph (90) above. However, in exercise of its inherent powers, this Court may, upon application by a party, or on its own motion, review, any of its Judgments, Rulings or Orders, in exceptional circumstances, so as to meet the ends of justice. Such circumstances shall be limited to situations where:
- the Judgment, Ruling, or Order, is obtained, by fraud or deceit;
- the Judgment, Ruling, or Order, is a nullity, such as, when the Court itself was not competent;
- the Court was misled into giving Judgment, Ruling or Order, under a mistaken belief that the parties had consented thereto;
- the Judgment or Ruling, was rendered, on the basis of a repealed law, or as a result of, a deliberately concealed statutory provision.”
- Article 165 also provides for the High Court’s supervisory jurisdiction thus: -
(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.
- In view of the above, in order for a party to successfully move a court to review its own decision or that of a court with coordinate jurisdiction, the party is required to meet conditions set out above.
- In considering the application, I note that the revisionary power of the High Court is provided for under Section 362 of the Criminal Procedure Code (Cap 75 of the Laws of Kenya)which states as follows:
“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 such subordinate court.”
- However, the section is to be read together with Section 364 of the Code which states as follow: -
“(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.
(2) No order under this section shall be made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by an advocate in his own defence: Provided that this subsection shall not apply to an order made where a subordinate court has failed to pass a sentence which it was required to pass under the written law creating the offence concerned.
(3) Where the sentence dealt with under this section has been passed by a subordinate court, the High Court shall not inflict a greater punishment for the offence which in the opinion of the High Court the accused has committed than might have been inflicted by the court which imposed the sentence.
(4) Nothing in this section shall be deemed to authorize the High Court to convert a finding of acquittal into one of conviction.
(5) When an appeal lies from a finding, sentence or order, and no appeal is brought, no proceeding by way of revision shall be entertained at the insistence of the party who could have appealed.”
- Community service is provided for under Section 3 of the Community Service Order Act No. 10 of 1998 which provides as follows: -
1) Where any person is convicted of an offence punishable with:-
a) Imprisonment for a term not exceeding three years with or without an option of a fine or
b) Imprisonment for a term exceeding three years but for which the court determines a term of imprisonment for three years or less, with or without a fine to be appropriate, the court may subject to this Act make a community service order requiring the offender to perform community service.
- The Applicant was charged with a sexual offence and sentenced to serve imprisonment term of twenty (20) years which is over and above the three (3) years sentence within which the court may order for community service order. The Applicant was sentenced on 5th September, 2013 and has a period of 1 year and 9 months left on the sentence.
- I have further considered the Applicant’s age and the fact that his health is deteriorating and whereas I find the sentence meted out justifiable, I will nonetheless extend mercy to the applicant and exercise judicial discretion in his favour and maintain the sentence passed against him save that the remaining 1 year and 8 months thereof shall be served on probation so as to rehabilitate him further and to resettle him into society.
- I have considered the Sentence Review Report I find that the Applicant has served sufficient punishment.
- Pursuant to the on going decongestion exercise, I set aside the sentence by the trial court and substitute the same with one for the time spent in custody plus an additional non-custodial sentence being community service at Mishomoroni Chief’s office for 2 years where he resides.
- He is warned to strictly adhere with the supervisor’s instructions and be of good conduct.
- It is so ordered.
IT IS SO ORDERED ACORDINGLY.
RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS …….28th…………DAY OF ……NOVEMBER…………………..…….., 2024
……………………………………………………..
HON. LADY JUSTICE W. M. KAGENDO
(JUDGE)
HIGH COURT OF KENYA AT MOMBASA
(CRIMINAL DIVISION)
In the presence of:
M/s. Bebora, Court Assistant;
……………Ms. Maina……………State Counsel;
………………………………………….…Applicant.