Boniface Mugendi Kinyua v Republic [2020] KEHC 6078 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT CHUKA

MISC. CRIMINAL APPLICATION  NO. 39  OF 2019

BONIFACE MUGENDI KINYUA.....APPLICANT

VERSUS

REPUBLIC........................................RESPONDENT

(Intended Appeal from Conviction(s) and Sentence(s) of the Chief Magistrate's Court at Chuka in Criminal Case No.1891 of 2004).

R U L I N G

1. BONIFACE MUGENDI KINYUA, the Applicant herein was charged at Chuka Chief Magistrate's Court Criminal Case No.1891 of 2004 with the offence of robbery with violence contrary to Section 296(2) of the Penal   Code.  He appealed vide Meru HCCCA No.104 /2008 but the appeal was not only dismissed but the sentence was enhanced to death sentence.  His subsequent  appeal to Court of Appeal was disallowed.

2.  The Applicant thereafter following the  recent Supreme Court's decision in the Muruatetu'scase, filed for revision/resentencing in this court and this     court allowed his application by revising his sentence from death sentence to   25 years imprisonment.

3. The Applicant has now in his application filed on 23rd October 2019 moved this court asking for  a further revision of his custodial sentence imposed by this court to run from 20th October 2004 when he claims he was arrested  rather than on 2nd July 2008 when he was convicted.  He reasons that he spent 4 years in custody during trial and that the said period should be taken into consideration as provided under Section 333(2) of the Criminal Procedure Code.

4. The Applicant has argued that this court is obligated to take into consideration the time he spent in custody when passing a custodial sentence.  He has relied on several cases to buttress that position.

5.  In his oral submissions in court, the Applicant cited an adverse report regarding his conduct while in custody and denied the same stating that there  was no formal report filed in court and that there was no action taken  against him.  He termed the allegations baseless.

6. The State through the Office of Director of the Public Prosecution  has opposed this application through a  Replying Affidavit sworn on 27th January 2020 by Erick Momanyi, the learned counsel for State.  The main basis of the opposition is that this court lacks jurisdiction to review its own revision.  He points out that this court rendered itself vide Criminal Revision  No.9 of 2018.

7.  The Direction of Public Prosecution contends that the only avenue open for  the Applicant is to prefer an appeal to the Court of Appeal.

8.  The Respondent has also termed this application frivolous contending that  this court took into consideration the 14 years period the Applicant had spent while meting out the 25 years prison sentence.

9. This court has considered this application for revision and the opposition by the State/Respondent.  The main issue in this matter revolves around the application of Section 333(2) of the Criminal Procedure Code and whether  this court can revise its own revision.

10.  It is true that Section 333(2) of the Criminal Procedure Code mandates a trial court to include the period or take into consideration a period in which    an accused person has spent in custody awaiting trial.  The provision       provides.

" (2) subject to the provision of Section 38 of the Penal Code (Cap 63) every sentence shall be deemed to commence from and to include the whole day of, the date on which it was pronounced, except where otherwise provided in this code.  Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of  the period spent in custody,"

11.  The above provision means that a trial court when imposing a custodial sentence is required to reduce the sentence proportionally to the period an accused person has already spent in custody during trial.  This is the  position well captured by Court of Appeal decision in Ahmed Abolfathi Mohammed & Another -vs- Republic [2018] eKLRwho inter alia observed  as follows:-

" It must be remembered that the proviso to section 333(2) of the Criminal Procedure Code was introduced in 2007 to give the court  power to include  the period already spent in custody in the sentence  that it metes out the accused person............."

12.  In this matter the Applicant herein was sentenced by the trial court  on 2nd  July 2008.  He was arraigned on 26th October 2004 as per the proceedings from the lower court.  As observed above the trial court meted out a  custodial sentence of 12 years which period was enhanced to death sentence by the 1st appellate court on 29th October 2010 and upheld by the Court of  Appeal on 28th November 2013.  The Applicant applied for revision of the  death sentence which was allowed by this court on 24th April 2019 when it  revised the sentence to 25 years imprisonment.

12.  This court while it does not agree with the Respondent's contention that this court lacks jurisdiction to revise its  own decision particularly when it comes to re-sentencing, it does agree with the Respondent's view  that this court in its ruling dated 24th April  2019 certainly took into consideration the roughly 14 year period the Applicant had spent from the time he was arraigned in  court on 24th October 2004 to 24th April 2019 when the court re-sentenced  the Applicant to 25 years period in custody.  If the Applicant was  dissatisfied or aggrieved by the finding of this court that the 14 years period  he had spent in custody appears not to have fully reformed him and hence  the need for a further 25 years, then the option opened to the Applicant was to appeal because Section 364(5) of the Criminal Procedure Code bars  him from re-approaching  this court again.

This court having rendered itself on the period the applicant should spent in  custody for purposes of reforming and keeping the society safe, it cannot  again be asked  to relook at the correctness or propriety of the sentence meted out having taken into consideration mitigating factors like the seriousness  of the offence and the remorsefulness of the Applicant.  To that extent, this court finds no merit in this application.  The same is disallowed. The Applicant has 14 days Right of Appeal.

Dated, signed and delivered via skype this 28th day of April 2020.

R.K. LIMO

JUDGE

28/4/2020

Ruling signed and delivered via skype connecting both Mr. Momanyi  for State and Accused person.

R.K. LIMO

JUDGE

28/4/2020