Kirigithe v Republic [2022] KEHC 10875 (KLR)

Kirigithe v Republic (Revision Case E013 of 2020) [2022] KEHC 10875 (KLR) (6 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10875 (KLR)

Republic of Kenya

In the High Court at Machakos

Revision Case E013 of 2020

MW Muigai, J

June 6, 2022

Between

Peter Kimanga Kirigithe

Applicant

and

Republic

Respondent

Ruling

1. The Applicant Peter Kimanga Kirigitheherein was jointly charged with another in Machakos Criminal Case No. 358 of 2008 for the offence of Robbery with Violence contrary to Section 296(2) of thePenal Code and convicted to suffer death on 3rd March 2009.

2. Aggrieved by the conviction and sentence he filed his Appeal in Machakos vide HCRA No. 43 of 2009. The Appeal was heard and the Court upheld the conviction and sentence of the Trial Magistrate delivered on 11th May, 2012 by Hon. Justice P. Kihara Kariuki as he then was and delivered by Hon. Justice Luka Kimaru and countersigned at Machakos by Hon. Justice M. S. Asike Makhandia.

3. The Applicant then approached Court vide Machakos Criminal Misc Application No. 67 of 2012 seeking leave to Appeal in the Court of Appeal and the same was granted.

4. The Applicant filed his Appeal in Court of Appeal vide KCA Appeal NO. 137 of 2013. On 17th March, 2014 the Court of Appeal wrote to the Deputy Registrar Machakos in respect of the matter stating that there was no Notice of Appeal in the High Court original record.

5. In Machakos Criminal Application No. Revision E013 of 2020, the Applicant on 14th October, 2020 filed in Court a Chamber Summons/Application vide under certificate of urgency seeking revision of the sentence passed upon him at on 2nd March, 2009 seeking the following prayers:-a.That he approached the Court following the Supreme Court decision in Petition No. 15 of 2015 in Francis Muruatetu –vs- Republic that declared mandatory death sentence unconstitutional.b.That the Court should have taken into account that he was the first offender and should have imposed a minimum sentence as held in Republic –vs- Otieno (1983).c.That the Court to hear and determine this application pursuant Section 333(2) of the Criminal Procedure Code.d.That he appears before court to raise grounds orally.e.That this application has high chances of success if prayers are granted.f.That he should be present during the hearing and Ruling of this Application.

6. On 25/05/2021 he filed an Amended Application seeking the following prayers:-a.That the Court exercises its review jurisdiction and reviews the sentence accordingly from death to a more lenient sentence.b.That the Court computes the time the Applicant has spent in custody as part of the sentence.c.That the Court makes a determination to take into account any mitigating factors beforehand and give the applicant reprieve.d.Any other orders that the Court may deem appropriate in the circumstances.

7. On 26/11/2020 the Applicant appeared in Court for the Mention of this Application and he told the Court that he lodged an Appeal at the Court of Appeal in 2012 but no report has ever been given to him since then. The Court ordered that the Machakos HCRA No. 43/2009 and Machakos CM Cr. Case No. 358 of 2008 be availed in Court.

8. The Court ordered the parties to file submissions in respect to the Application.

SubmissionsApplicant’s submissions filed on 8th February, 2022. 9. The applicant submitted that he is currently serving a sentence of life imprisonment after H.E. the President commuted the same from death to life sentence in the year 2009; that as earlier stated the orders by the Supreme Court in Francis Karioko Muruatetu & Anor vs Republic [2017]eKLR (hereinafter Muruatetu 1) specifically the guidelines given at Clause 71 provided 8 (eight) tests to be applied by the Courts when resentencing. The list includes the following;a.Age of the offenderb.Being a first offender;c.Whether the offender pleaded guilty;d.Character and record of the offender;e.Commission of the offence in response to gender-based violence;f.Remorsefulness of the offender;g.The possibility of reform and social re-adaption of the offender;h.Any other factor that the Court considers relevant.

10. That the Appellant is not contesting the merits or demerits that might have occurred during the trial and hearing of the Appeal but implores that court to balance his mitigating factors viz a viz the aggravating factors if any and provide appropriate sentence; that previously there was only one sentence prescribed for the offence of robbery with violence which was death sentence but the Supreme Court decision has actually untied the hand of Judicial Officers in sentencing of offenders and can now exercise discretion.

11. The Applicant stated that he admitted he caused pain to the complainants and had since asked for forgiveness for his actions to God and the complainants as well as himself. He is now a changed man and has accepted his salvation. He regrets the incident and since there is nothing he can do about his past he be given a second chance so that he can use his future to teach and guide others the lesson he has painfully learnt; that he has been a mentor and has been motivating other prisoners to better their lives while in custody and use the skills that are available; he is well behaved now and he had had no indiscipline issues with prison.

12. He further submitted that when the incident happened he was a young person aged 29 years working as a mechanic in Machakos; that he was married with three children hence his wife is now the breadwinner of the family. He did not have previous conviction therefore should be treated as a first offender; he had stayed for more than 13 years in custody from the time of the arrest; he is now aged 42 years and had never had any incident against Prison Rules and regulations; that he has attached records proving that he is now reformed.

13. According to Legal Notice No. 2970 gazetted on 29/01/2016 the sentence policy must promote restorative justice and values of rehabilitation.

14. In the Case of Misc Cr. No. 45 of 2018 (the citation is not complete so as to enable the Court read the same on eKLR )the High Court at Nakuru expressed itself on the Judiciary Sentencing Policy & Guidelines and the Judiciary Criminal Procedure Bench book 2018 on elaborate step by step considerations that the Court must apply when sentencing.

15. The Applicant relied on the case of Thokozile Matilda Masipa in Oscar Pistorius murder on sentencing;‘Sentencing is about achieving the right balance or in more high flown terms, proportionality. The elements at play are the crime, the offender, the interests of society with different nuance, prevention, retribution, reformation and deterrence. Invariably there are overlaps that render the process unscientific, even a proper exercise of judicial function allows reasonable people to arrive at different conclusions’’….

The Respondents written submissions: 16. Section 50 (2) of theConstitutionstates that “every accused has the right to a fair trial which includes the right –(q)If convicted, to appeal to, or apply for the review by, a higher Court as prescribed by law.”

17. The Applicant should first exhaust his right of Appeal to the Court of Appeal. The Court of Appeal will be in a position to scrutinize both the conviction and sentence of the High Court therefore this application is un-procedural and an abuse to the structure of Courts.

18. The Respondent further submitted that this Court is functus officio as this court is barred from proceeding with this application since it heard and substantively adjudicated the appeal.

19. The Court of Appeal in the case of Telkom Kenya limited –vs- John Ochanda (suing on his own behalf and on behalf of 996 Former Employees of Telkom Kenya Limited [2014]eKLR the Court observed thus:“Functus officio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon. It is a doctrine that has been recognized in the common law tradition from as long as the latter part of the 19th century.

20. When a Court becomes functus officio, the only orders it can grant are review orders which are an exception to the functus officio doctrine. In Jersey Evening Post Limited –Vs- Al Thani [2002] JLR 542 at 550 which was cited and applied by the Supreme Court in Raila Odinga & 2 others –vs- I.E.B.C. & 3 others [2013]eKLRthat;“A court is functus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded and the court functus when its judgement or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling or adjudication must be taken to a higher court of that right is available.”

21. The Respondent concluded by stating that the application be dismissed in its entirety.

Determination 22. I have considered the submissions and authorities relied upon parties in the matter.

23. The question for determination is whether this Court has the requisite jurisdiction to resentence the Applicant. There are also prayers by the Applicant as follows;a.That the Court exercises its review jurisdiction and reviews the sentence accordingly from death to a more lenient sentence.b.That the Court computes the time the Applicant has spent in custody as part of the sentence.c.That the Court makes a determination to take into account any mitigating factors beforehand and give the applicant reprieve.d.Any other orders that the Court may deem appropriate in the circumstances.

Review/revisionThe Criminal Procedure Code provides on Review/Revision as follows;362. Power of 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.364. Powers of High Court on revision(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;……………………………….(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.

25. The Applicant pursued appeal from Chief Magistrate’s Court to the High Court vide Criminal Appeal 43 of 2009 and the conviction and sentence were upheld. The Powers of this Court to revise/review sentence are curtailed by the above provision, a review cannot be entertained of a finding, sentence or order to/for a party that had right of appeal and in this case the Applicant exercised that right in the above-mentioned case.

26. High Court of Malaysia in Public Prosecutor vs. Muhari bin Mohd Jani and Another [1996] 4 LRC 728 at 734, 735 observed:“…..The object of revisionary powers of the High Court is to confer upon the High Court a kind of “paternal or supervisory jurisdiction” in order to correct or prevent a miscarriage of justice. In a revision the main question to be considered is whether substantial justice has been done or will be done and whether any order made by the lower court should be interfered with in the interest of justice…”

27. It emerges therefore that the Court jurisdiction on review/revision on sentence to change the sentence from Life imprisonment to a more lenient sentence in light of the Applicant’s rehabilitation progress and mitigating factors prescribed by the Judiciary Sentencing Policy Guidelines Clause 23. 8. Whereas the Court concedes and appreciates submissions outlining the process and considerations of sentence, the Court cannot legally undertake reconsider the sentence in a revision more so after the appeal was heard and determined by this Court.

Whether This Court Is Functus Officio 28. The Applicant has urged this court to consider the period of 13 years he has spent in custody and acquit him or mete out another sentence other than Life imprisonment which was granted through Presidential clemency.

29. The DPP opposed the application on ground the Applicant filed his Appeal in Machakos vide HCRA No. 43 of 2009 which was was heard and the Court upheld the conviction and sentence of the Trial Magistrate delivered on 11th May, 2012 by Hon. Justice P. Kihara Kariuki (as he then was) and delivered by Hon. Justice Luka Kimaru and countersigned at Machakos by Hon. Justice M. S. Asike Makhandia (as he then was).

30. The DPP/Prosecution Counsel asserted that this Court is functus officio since it heard and substantively adjudicated in the Machakos High Court Criminal Appeal No. 43 of 2009 where the Trial Court sentence of death penalty was upheld and thereafter it was commuted to life imprisonment.

31. The DPP/ Prosecution cited the case of Raila Odinga & 2 others vs Independent Electoral & Boundaries Commission & 3 others [2013] eKLR.

32. Sentencing is a discretion of the Trial Court and this Court would only address the sentence issue if the sentence is illegal or inappropriate as held by Hon. Kiarie Waweru Kiarie J. in the case of Joseph Maburu alias Ayub vs. Republic [2019]eKLR where he stated that:-“Sentencing is a judicial exercise. Once a judge or a judicial officer has pronounced a sentence, he/she becomes functus officio. If the sentence is illegal or inappropriate the only court which can address it is the appellate one. The Black’s Law Dictionary Tenth (10th) Edition describes defines sentence as:The judgment that a court formally pronounces after finding a criminal defendant guilty; the punishment imposed on a criminal wrongdoer.Remitting a matter to the trial court which had become functus officio after sentencing flies in the face of the doctrine of functus officio. It amounts to asking the trial court to clothe itself with the jurisdiction of an appellate court. This is an illegality.”

33. This Court perused the Court file and confirmed the judgment of Chief Magistrate’s Court Machakos Criminal Case 358 of 2008 delivered on 2/3/2009 and the Applicant was sentenced to death.

34. This Court in Machakos Criminal Appeal No. 43 of 2009 upheld the Trial Court sentence. The appeal was before a court of similar, equal, competent and concurrent jurisdiction to/as this Court. This Court is functus officio.

35. The Applicant filed an appeal in the Court of Appeal Criminal Appeal 137 of 2013. The Notice of Appeal was not filed and the appeal remains pending todate.

Resentencing 36. The Applicant submitted that he is remorseful and admitted he caused pain to the complainants and sought forgiveness for his actions from God, the complainants as well as himself. He is reformed and rehabilitated and has accepted his salvation. He sought a second chance so that he can use his future to teach and guide others the lesson he has painfully learnt. He has been a mentor, motivating other prisoners to better their lives while in custody and to learn and use the skills that are available; he is well behaved now and he had had no indiscipline issues with Prison.

37. He further submitted that when the incident happened he was a young person aged 29 years working as a mechanic in Machakos; that he was married with three children hence his wife is now the breadwinner of the family. He did not have previous conviction therefor should be treated as a first offender; he had stayed for more than 13 years in custody from the time of the arrest; he is now aged 42 years and had never had any incident against prison rules and regulations; that he has attached records proving that he is now reformed.

38. In his submissions; the Applicant submitted that he acquired training and skills while in prison to enable him help the youth in the society, although the certificates have not been supplied to this court. According to the Applicant, the period spent in the prison was sufficient to rehabilitate him. He submitted that he has never had a single discipline case in the prison. He pleaded for a second chance in life.

39. It is possible that the 13 year period spent by the Applicant in prison may have made it possible for him to be rehabilitated into a person that would impact the society positively. The Applicant has submitted extensively on the new person that he is now and has requested this Court to consider that he is changed person ready to move back to the society.

40. The Court notes that no Report from a Probation Officer or the Prison has been filed to enlighten the court on the Applicant’s behavior but the lack of the report does not discount the Applicants submissions that he has changed his behavior. The Prosecution issue is only contending that this Court is functus officio.

41. The Court is functus officio. The Applicant recourse is before the Court of Appeal. Article 50 (2) (q) of theConstitution is clear that the Applicant would seek redress before a higher court, in this case the Court of Appeal.

Disposition 42. In the upshot, this Court lacks requisite jurisdiction to review the sentence as this Court heard and determined Appeal 43 of 2009 upheld conviction and sentence of death penalty and later commuted to life imprisonment.

43. The Applicant to lodge appeal in Court of Appeal as provided by Article 50 (2)(q) of the Constitution.

44. Deputy Registrar to facilitate the Notice of Appeal is filed by Applicant and Appeal lodged in Court of Appeal.

It is so ordered.RULING DATED, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 6th JUNE, 2022. (VIRTUAL CONFERENCE)M.W. MUIGAIJUDGE