Mokua & another v Republic [2022] KEHC 11722 (KLR)

Mokua & another v Republic (Miscellaneous Criminal Application E088 of 2021) [2022] KEHC 11722 (KLR) (13 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11722 (KLR)

Republic of Kenya

In the High Court at Kisumu

Miscellaneous Criminal Application E088 of 2021

JN Kamau, J

May 13, 2022

Between

Cliff Bikeri Mokua

1st Applicant

Edwin Chweya Mokua

2nd Applicant

and

Republic

Respondent

(chieng J Criminal Petition 38 of 2020 )

Ruling

1. The Applicants herein were tried and convicted for the offence of robbery with violence contrary to section 296 (2) of the Penal Code. They were sentenced to death.

2. Being dissatisfied with the said decision, they lodged an appeal in the High Court which was dismissed in its entirety and his conviction and sentence upheld. There was no record from the High Court in the file. There was also no indication of whether or not they appealed to the Court of Appeal.

3. They subsequently filed Criminal Petition No 87 of 2018 in which the court substituted the death penalty with twenty (20) years imprisonment. They later filed Criminal Petition No 38 of 2020 where Ochieng J considered the time they had spent in remand and the same was computed into their current sentence of twenty (20) years imprisonment.

4. On January 6, 2022, they filed this application for review of the sentence seeking for orders that this court do remit the current balance of their sentences, which was three (3) years, to non-custodial sentence vide Community Service Order under its inherent jurisdiction powers bestowedupon it by the Constitution of Kenya, 2010 because their health status was deteriorating at an alarming rate due to unforeseen medical challenges dating back to the year 2011 when they were arrested.

5. In their Affidavit in support of their application, they pointed out that the new orders they sought could not have been addressed during re-sentencing in Criminal Petition No 87 of 2018 as they were serving a death penalty by then.

6. The Respondent opposed their application on the ground that the same had already been reviewed and that the issue of remittal of sentence to a non-custodial sentence was under the power of mercy which was a responsibility vested in a committee with laid down procedures and that it was therefore not under the purview of this court.

7. Right from the onset, this court restrained itself from analysing the parties’ Written Submissions as it noted from the said Submissions that Ochieng J heard and determined Petition No 38 of 2020 that was filed by the applicants herein.

8. Whereas they had pleaded with this court to hear the present application as they were seeking orders to complete their sentences on Probation or under a Community Service Order, this court noted that Ochieng J had pronounced himself on how they would serve the sentence that was reduced to twenty (20) years. As this court was of equal and competent jurisdiction as his court, it could not purport to review his decision. It was thus prudent that he handled the application herein.

Disposition 9. For the foregoing reasons, it is hereby directed that this file be placed before Ochieng J on June 23, 2022 for his further orders and/or directions on the Applicant’s application herein that was lodged on June 11, 2020.

10. It is so ordered.

DATED AND DELIVERED AT KISUMU THIS 13TH DAY OF MAY 2022J. KAMAUJUDGE