Daniel Mutua Kimwel, John Kyalo Kimwele & Musyimi Kimwele v Republic [2017] KEHC 2014 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT GARISSA

CRIMINAL APPEAL NO. 37 OF 2016

DANIEL MUTUA KIMWEL..........................................1ST APPELLANT

JOHN KYALO KIMWELE……………………………...2ND APPELLANT

MUSYIMI KIMWELE……………………………………3RD APPELLANT

VERSUS

REPUBLIC………………………………………………...RESPONDENT

RULING

This court determined Criminal Appeals Nos. 37 of 2016, 38 of 2016 and 39 of 2016 (consolidated) on 4th October 2016, relating to the three appellants.

In determining the said consolidated appeals, the court concluded as follows:

“Consequently I dismiss the appeal on conviction. I uphold the conviction for the trial court. I however set aside the sentence against each appellant and order that each of the appellant will serve a sentence of four (4) years imprisonment from the date on which they were sentenced by the trial court. Dated and delivered at Garissa this 4th October 2016. ”

The three have now come back to this court through a letter addressed to the Deputy Registrar dated 13th July, 2017 which request this court thus:

“Kindly refer to the above Criminal Appeals Nos. 37, 38 and 39 of 2016 which were consolidated and a decision given by the Judge, in which we hereby write to request as follows;

That we write this application jointly as convicts herein requesting you to place the files aforementioned before the Judge for the sole purpose of undergoing a request for review of the terms of sentence. This request is made under the provisions of Article 159 (d) and 165 (6) (7) of the Constitution and Section 14 and 15 of the Criminal Procedure Code on the issue of giving us an option of a fine.

We are serving a sentence of 4 years for an offence of  grievous harm. We wish that the Judge could consider our prayer hence give the said option which will serve as a punishment as provided by the law and guidelines in sentencing”.

When the matter came before me on 20/9/2017, Daniel Kimwele relied on the letter and requested that they be put on probation or a fine. He said that as three brothers, they had young children with nobody to care for them. John Kyalo supported what Daniel Kimwele said while Musyimi Kimwele stated that this children were school going and any assistance from the court would avoid a situation where the children would become street children.

The Principal Prosecuting Counsel, Mr. Okemwa in response stated that Article 159 of the Constitution appeared to confer discretion to the court. In addition Article 165 conferred on the court discretion on fundamental rights and freedoms. Counsel however stated that what the convicts/ appellants wanted was a grey area and added that he had so far neither received a good or bad report from prison authorities on the convicts.

The Prosecuting Counsel concluded that there is no bar to a fine or putting on CSO in cases of conviction for grievous harm.

The convicts are asking for review of their sentence by this court after their sentences were reduced by the same court on appeal. I will start by stating that Community Service Orders are reserved for situations where the sentence is not more than three (3) years. Therefore, the present situation thus does not lend itself to application of the Community Service Orders (CSO) Act.

Indeed, there is no bar to imposition of a fine in cases of conviction for grievous harm, though the maximum sentence under Section 234 of the Penal Code is life imprisonment. Each case has to be decided on its own particular facts and circumstances, as regards sentencing. The sentence in grievous harm causes not being mandatory or having a minimum sentence, a fine can be imposed. Under Section 31 of the Penal Code also the court can order monetary compensation to victims of crimes.

In this matter, appeals have already been determined by this court. Each of the appellants was initially sentenced to ten (10) years imprisonment by the trial court, and on appeal this court reduced the sentence to four (4) years imprisonment.

In my view, this court has no jurisdiction to review its decision above. No law has been cited to support the contention that the court can review its decision above. In addition, the complainant suffered serious injuries and lost a tooth, with several other teeth becoming loose. The appellants were thus lucky to have had their sentences reduced on appeal. This court cannot thus review its own decision above.

If the appellants wanted the court to consider imposition of a fine or compensation to the complainant or both, they should have raised it either at the trial or on appeal, and the court would have made a decision on the issue. They did not, and they are too late to bring the issue to this court now after this court determined their appeal and reduced the prison sentences.

In my view, the request by the appellants herein not backed by the Constitution and the law, this court has no jurisdiction to entertain the same.

I thus dismiss the request for review of sentence.

Dated and delivered at Garissa on 14th November, 2017.

GEORGE DULU

JUDGE