Paul Musembi Mutua v Republic [2022] KEHC 1591 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MAKUENI

HC. MISC. CRIMINAL. APPLICATION NO. 68 OF 2019

PAUL MUSEMBI MUTUA.....................................................................................APPLICANT

-VERSUS-

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

RULING

1. The applicant has come to this court through an application under Article 22 and 258 (2)(c) of the Constitution filed on 19th December 2019 seeking the following orders –

1) That the court be pleased to apply the provisions of section 333 (2) of the Criminal Procedure Code that the time served by the applicant in remand be factored (in his sentence).

2) That the court be pleased to find the time served by the applicant as sufficient sentence and acquit the applicant.

3) That in the interest of justice the court do exercise its inherent powers to do justice to the applicant taking into account the period spent in custody.

4) Such other or further orders as this humble court may (find) fit to grant.

2. The application was canvassed through filing of written submissions, and I have perused and considered the submissions filed by the applicant and those filed by the Director of Public Prosecution. Both sides have relied on decided court cases. The applicant also filed a letter of recommendation from the Prisons Department dated 07/02/2022.

3. This is a request for review of sentence mainly based on the reasoning in the Supreme Court decision in Francis Karioko Muruatetu –vs- Republic – Petition No. 15 of 2015; and also the provisions of section 333(2) of the Criminal Procedure Code (cap. 75).

4. In the present case, the applicant was convicted by the magistrates’ court at Makindu for defilement. His appeal Machakos HCCRA 146 of 2014 against conviction was dismissed by the High Court on 11th November 2015.

5. Though the applicant relies on the Muruatetu case for his request for review of sentence this court cannot review his sentence on that basis as the Supreme Court on 6th July 2021 clarified through its directions issued in the said case that the decision therein only covered cases relating to the mandatory death sentence in murder cases and not in any other cases.

6. With regard to section 333(2) of the Criminal Procedure Code (cap.75). I note that the applicant did not challenge his sentence on appeal, which has been determined by the High Court as above. I further note that he was sentenced to life imprisonment for defiling a young girl of 8 years.

7. Again, section 333(2) of the Criminal Procedure Code cannot help the applicant as the statutory mandatory sentence is life imprisonment. In this regard, the sentence section provides as follows –

8(2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.

8. Thus following from the above, neither the trial court nor this court has the jurisdiction to consider the period in custody during trial in sentencing the applicant.

9. In the result, this application for review of sentence is for dismissal. The application herein is thus dismissed.

DELIVERED, SIGNED & DATED THIS 9TH DAY OF MARCH, 2022, IN OPEN COURT AT MAKUENI.

......................

George Dulu

Judge