SMS v Republic [2022] KEHC 11577 (KLR)

SMS v Republic (Miscellaneous Criminal Application E247 of 2021) [2022] KEHC 11577 (KLR) (Crim) (21 July 2022) (Ruling)

Neutral citation: [2022] KEHC 11577 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Miscellaneous Criminal Application E247 of 2021

JM Bwonwong'a, J

July 21, 2022

Between

SMS

Applicant

and

Republic

Respondent

(Being an application for revision of the sentence of 15 years imprisonment delivered by Hon. M.A Opondo (P.M) on 19th July 2021 in Makadara Chief Magistrates Court Criminal Case No. 4654 of 2014 Republic vs Samora Mashel Shisoka)

Ruling

1. SMS was charged with the offence of incest contrary to section 20 (1) of the Sexual Offences Act No. 3 of 2006. He also faced an alternative charge of committing an indecent act with a child contrary to section 11 (1) of the Sexual Offences Act, No. 3 of 2006.

2. He was tried and convicted on the main charge and sentenced to 15 years imprisonment by the trial court.

3. He has now approached this court by an undated notice of motion pursuant to sections 333 (2), 362, and 364 of the Criminal Procedure Code (cap 75) Laws of Kenya. The applicant seeks revision of his sentence of 15 years imprisonment that was handed down by the trial court.

4. The applicant also filed a supporting affidavit in support of his application.

5. The averments made in his support affidavit are as follows. He has reformed and is ready to be reintegrated back into society. Secondly, he is the sole breadwinner for his family and his continued incarceration is greatly jeopardizing the education and welfare of his children. He has also stated that he will never engage in any criminal activity.

6. He has urged the court to reduce his sentence to 5 years suspended sentence and has also urged the court to consider the period already served.

The applicant’s written submissions 7. In addition to the written submissions, the applicant informed the court of his mitigation in support of his application. He stated that he has established a personal relationship with God having undergone numerous theology training and attained relevant certificates. Further that the lessons attained will help him lead a moral and spiritual life when reintegrated back into society by preaching salvation.

The respondent’s response 8. In response to the application, the respondent filed grounds of opposition dated March 15, 2022. The grounds raised are that the court lacks jurisdiction to entertain the application. Secondly, the court cannot entertain the application brought by way of revision where a remedy lies by way of appeal. Thirdly, the application offends the provisions of section 364 (5) of the Criminal Procedure Code (cap 75) Laws of Kenya. Finally, the application lacks merit and should be dismissed in its entirety.

The respondent’s written submissions. 9. Ms. Maureen Akunja, Principal Prosecution counsel, filed written submission in opposition to the application. She submitted that the sentence imposed by the trial court on the applicant is lawful and proper. She further submitted that the applicant has not demonstrated any illegality or impropriety of the sentence of the trial court to warrant the exercise of the court’s revisionary jurisdiction.

10. Counsel also submitted that the application offends the provisions of section 364 (5) of the Criminal Procedure Code, which provide that where an appeal lies, no proceedings by way of revision should be entertained. She argued that the applicant was properly convicted by the trial court and failed to appeal the judgement and sentence.

11. Counsel further submitted that the trial court was very lenient in convicting the applicant to 15 years imprisonment yet the Sexual Offences Act No. 3 of 2006 provides for life imprisonment if convicted and if the child is below 18 years as is the case herein.

13. She urged the court to dismiss the application for lacking in merit.

Issues for determination 14. Having considered the application, the grounds of opposition, the mitigation, and submissions, the issue that arises for determination as follows: -1. Whether the applicant should be granted the revisionary orders sought.

Analysis and determination 15. The power of this court in its revisionary jurisdiction is founded under section 362 of the Criminal Procedure Code which provides that:

16. The 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.”

17. The supervisory jurisdiction of this court has been constitutionalized in article 165 (6) of the Constitution which provides that: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.”

18. The jurisdiction of this court is not in doubt in view of the above provisions. Where the court finds that the findings, sentence, or order recorded or passed by the subordinate was either not correct, lawful or proper, the remedy under section 364 is either to reverse the sentence where there is a conviction or alter the finding while maintaining the sentence, reduce or increase the sentence as prescribed by section 354 of the Criminal Procedure Code.

19. The issue that I need to consider therefore is whether to revise the order of the trial court that sentenced the applicant to 15 years imprisonment for the offence of incest contrary to section 20(1) of the Sexual Offences Act, No.3 of 2006.

20. Section 20 (1) of the Sexual Offences Act provides:20 (1) Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years:Provided that, if it is alleged in the information or charge and proved that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of a female person.”

21. The above section creates the offence and ingredients of incest and also prescribes punishment generally, in the event that it is proven that the complainant is a minor. Before the trial court, the applicant was charged with the offence of incest and the victim was a child aged 9 years old. The trial court considered the totality of the evidence adduced and made a determination that indeed the applicant had committed the crime he was charged with. The trial court went ahead and sentenced him to serve 15 years imprisonment after considering his mitigation.

22. In the case of Shadrack Kipkoech Kogo vs Republic, Eldoret Criminal Appeal No 253 of 2003, the Court of Appeal stated that: -Sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or factors, that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered.”

23. I find that there is no basis to exercise the revisionary powers that are vested in this court under section 362 as read with section 364 of the Criminal Procedure Code (cap 75) Laws of Kenya. I further find that the sentence imposed was lawful, appropriate and justified in the circumstances. I find no reason to interfere with the sentencing discretion of the trial court.

24. In the premises, I find that the application lacks merit and is hereby dismissed in its entirety.

RULING SIGNED, DATED AND DELIVERED IN OPEN COURT AT NAIROBI THROUGH VIDEO CONFERENCE ON THIS 21ST DAY OF JULY 2022. J M BWONWONG’AJUDGEIn the presence of-Mr. Kinyua: Court AssistantThe applicant in personMs Edna Ntabo for the Republic/Respondent