Kemunto v Republic [2023] KEHC 25560 (KLR)

Kemunto v Republic (Miscellaneous Criminal Application E021 of 2023) [2023] KEHC 25560 (KLR) (21 November 2023) (Revision)

Neutral citation: [2023] KEHC 25560 (KLR)

Republic of Kenya

In the High Court at Nyamira

Miscellaneous Criminal Application E021 of 2023

WA Okwany, J

November 21, 2023

Between

Edna Kemunto

Applicant

and

Republic

Respondent

Revision

1. The Applicant herein, Edna Kemunto, was charged with the offences (two counts) of Assaulting Police Officers Contrary to Section 103 (a) of the National Police Service Act.

2. The particulars of the offences were that on 7th February 2022 at Geta village in Mongoris Sub-location within Bogichora Location in Nyamira County assaulted Number xxxx PC George Agan and Number xxxx PC Onesmus Kimani Police officers who at the said time were duly executing their duties.

3. The case was heard before the trial court where the prosecution called a total of 5 witnesses.

4. The Applicant was at the end of the trial found guilty on both counts. She was convicted and sentenced to pay a fine of Kshs. 100,000/= for each count and in default to serve 2 years imprisonment for each count. The prison sentences were to run concurrently.

5. The Applicant filed the application dated 5th May 2023 seeking leave to appeal out of time which application was allowed on 13th June 2023. The case was thereafter mentioned on 18th July and 31st October 2023 to confirm if the appeal had been filed.

6. When the matter came up for further mention on 8th November 2023 to confirm the filing of the appeal, the Applicant informed the court that her prayer was for a revision of sentence so that she could go back home and take care of her children who were under the care of strangers following her imprisonment.

7. I have carefully perused the Applicant’s application dated 5th May 2023 and I note that even though it is worded, at the top, as an ‘Application to Appeal out of time’, the Certificate of Urgency that accompanied the application is worded as an Application for Revision of Sentence.

8. This court is of the view that it is a high time that the drafters of pleadings at the Prison Legal Aid Department be trained on the importance of presenting the correct pleadings before the court so as to avoid the filing of misleading applications.

9. Mr. Chirchir, Learned Counsel for the State was of the view that this court should invoke its discretionary powers to revise the sentence imposed on the Applicant. The record reveals that the Applicant was arrested on 9th February 2022 and remained in custody during the entire period trial. She was convicted on 9th November 2022 and has therefore been in prison for over 1 year.

10. Article 50 of theConstitution of Kenya provides for the rights of an accused person to apply for review as follows: -(2)Every accused person has the right to a fair trial, which includes the right-(q)if convicted, to appeal to, or to apply for review by a higher court as prescribed by law.

11. This Court’s revisionary powers are premised on Article 165 of theConstitution and Section 362 of the Criminal Procedure Code which provide as follows: -Article 1651. 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.Criminal Procedure Code362. Power of the High Court to Call for RecordsThe 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.

12. Section 364 of the Criminal Procedure Code outlines the revisionary powers of the High Court under Article 165 of theConstitution and Section 362 of the Criminal Procedure Code and how they are to be exercised thus: -364. Powers of the High Court on Revision1. 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 that 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 a 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.

13. The duty of this Court is to examine whether the sentence imposed by the trial court was correct, appropriate and legal, bearing in mind the fact that sentencing is a duty of the trial court. (see the Court of Appeal decision in Bernard Kimani Gacheru vs. Republic [2002] eKLR.)

14. It is also trite that a court will only interfere with the sentence of a trial court where the same is not founded in law or is manifestly excessive. In R. vs. Mohamedali Jamal (1948) 15 EACA, 126, the Eastern Africa Court of Appeal held thus: -“It is well established that an appellate Court should not interfere with the discretion exercised by a trial Judge or Magistrate except in such cases where it appears that in assessing sentence, the judge has acted upon some wrong principle or has imposed a sentence which is either patently inadequate or manifestly excessive.”

15. I have perused the trial court’s record and noted the sentence imposed on the Applicant herein by the trial court. The offences for which the Applicant was charged and convicted are serious as they relate to assault of police officers while carrying out their lawful duties. Police officers are charged with the enforcement of law and order and should be allowed to carry out their functions without hindrance or interference by anyone. The seriousness of the offence notwithstanding, courts are under an obligation to mete out punishment that is not excessive. Very harsh sentences do not serve the interests of justice or society in any way.

16. In S vs. Scott-Crossley 2008 (1) SACR 223 (SCA) at para 35, it was held thus: -“Plainly, any sentence imposed must have deterrent and retributive force. But of course, one must not sacrifice an accused person on the altar of deterrence. Whilst deterrence and retribution are legitimate elements of punishments, they are not the only ones, or for that matter, even the overriding ones. ……. It is trite that it is in the interest of justice that crime should be punished. However, punishment that is excessive serves neither the interests of justice nor those of society.” (Emphasis added).

17. I have considered the fact that the Applicant is the sole breadwinner of her family consisting of very young children. The trial court was required to consider the mitigating factors during sentencing in accordance with the principles stated in the Judiciary Sentencing Policy Guidelines, 2016.

18. I have considered the sentence imposed on the Applicant and the fact that she is a young mother aged 25 years with two young children. She indicated, before the trial court, that she is remorseful for the offences that she committed. She pleaded for leniency before this court.

19. I am of the view that the 9 months period that she spent in remand custody and the over 1-year period that she has spent in prison is adequate punishment for the offences.

20. Consequently, I allow the application for revision of sentence.

21. I therefore set aside the sentence imposed by the trial court and substitute it with the period that the Applicant has so far spent in prison.

22. I direct that the Applicant be set at liberty forthwith unless she is otherwise lawfully held.

23. It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY VIA MICROSOFT TEAMS AT NYAMIRA THIS 21ST DAY OF NOVEMBER, 2023. W. A. OKWANYJUDGE