1.The Applicant was charged before Yatta Law Courts in Criminal Case No. 7 of 2009 with the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006. The Trial Magistrate sentenced the Applicant to life imprisonment.
2.Aggrieved by the Trial Court conviction and sentence, he appealed before Machakos High Court Criminal Appeal No.108 of 2010. The High Court upheld the conviction and sentence to life imprisonment.
3.The Applicant filed Certificate of Urgency filed on 11/11/2020 Chamber Summons filed on the same date before this Court, the Applicant sought to be resentenced pursuant to the following cases;a.Court of Appeal decision of Evans Wanyonyi vs. Republic (2019) eKLR, Criminal Appeal No. 318 of 2018 which was based on the;b.Supreme Court decision of Francis Karioko Muruatetu & Another vs. Republic  eKLR and;c.Court of Appeal decisions of Jared Koita Injiri vs. Republic Kisumu Cr. Appeal No. 93 of 2014;d.Christopher Ochieng vs. Republic (2018) eKLR; where the sentence of 20 years imprisonment was set aside and substituted with 10 years’ imprisonment.
4.According to the Applicant, the Supreme Court declared Section 296(2) and 203 as read with Section 204 of the Penal Code to be unconstitutional for violating the provisions of the Constitution, 2010. According to the Applicant, the Supreme Court decision applies to sentences that provide for a mandatory sentence.
5.The Applicant has urged the court to consider the time he spent in custody pursuant to Section 333(2) of the Criminal Procedure Code as sufficient and acquit him.
Applicant’s Mitigation Submissions
6.The Applicant submitted that his mitigation submission seek his resentencing pursuant to the declaration made in the Court of Appeal decisions of Joseph Kaberia Kahinga & 11 Others vs. Attorney General (2016) eKLR Petition No. 618 of 2010 and Evans Wanjala Wanyonyi vs. Republic eKLR, Criminal Appeal No. 312 of 2018.
7.According to the Applicant, he is remorseful and regrets his action. He submitted that he was sorry to his family and his social circles. He submitted that he was a first offender and has never been punished in prison for the last 12 years he has been incarcerated. According to the Applicant, there are no aggravating circumstances such as loss of life, maiming or injury in the commission of the offence to warrant his continued stay in prison According to the Applicant, he has spent 12 years in prison.
8.Before his arrest he was not involved in any crime or misconduct, he was arrested at 19 years of age and has been in prison for 12 years which is sufficient punishment so that he can go back and have a family of his own.
9.He has urged the court to consider that he has been rehabilitated while in prison, he trained and acquired skills for personal development as well as to help the community. He submitted that through the collaboration of Mama Africa Youth Centre, Sarakasi Trust and the Kamiti Maximum Prison, he was trained in Acrobatic/physical Training Exercise Program, Skills and Talent Empowerment Program, Physio-therapy Program and Self-awareness Program.
10.According to the Applicant, the skills he acquired in prison will enable him to positively impact on the youths in the society and since he has been trained in bible teachings, he will train the society on how to resolve violence disputes.
11.With regard to resentencing, reliance was placed on the case of Yawa Nyale vs Republic  eKLR on resentencing on sexual offences applying Article 27 CoK 2010 & Muruatetu case & the case of Evans Wanjala Wanyonyi vs Republic eKLR where the Court of Appeal held that:
12.Regarding sentencing, reliance was placed on the case of Dismus Wafula Kilwake vs Republic (2019), the Court of Appeal took the view that holding that mandatory death sentence is unconstitutional should be applicable to sexual offences.
13.The Applicant referred to the Judiciary Criminal Procedure Bench Book 2018 at Pg 114 that sets out the process of Sentencing & the Judiciary Sentencing Policy Guidelines on the mitigating and/or aggravating circumstances in sentencing and that the Sentencing policy is to promote restorative justice and values of rehabilitation.
14.The Appellant reinforced his argument be reference to High Court of South Africa lady Justice Thokozile Matilda Masipa in the case of Oscar Pistorious (no citation was provided to enable this Court read it online) on the right balance to applied by the Court in sentencing; and Misc. Cr.No.45 of 2018 before the Nakuru High Court (citation not complete) on application of the Judiciary Sentencing Policy.
15.The Applicant urged this court to consider the effect of Section 333(2) of the Criminal Procedure Code (CPC) that requires time spent in custody be considered as held in Titus Ngamau Musila alias Katitu Criminal Case No. 78 of 2014 that dealt with Section 46 of Prisons Act.
16.The DPP/Prosecution submitted that the Applicant was tried and convicted for the offence under Section 8 & 8 (2) of Sexual Offences Act.
17.On behalf of the Prosecution, the Prosecution Counsel, Martin Mwongera submitted that pursuant to Article 50(2) & (q) of the Constitution, if convicted, to appeal to, or apply for review by, a higher Court as prescribed by law.
18.The Applicant should first exhaust his right of appeal to the Court of Appeal which will be in a position to scrutinize the conviction and sentence of this Court. The Prosecution submitted that the application is not procedural and an abuse of the courts structure.
19.According to the Prosecution, this court is functus officio since it is barred from proceeding with the application as it heard and substantively adjudicated the appeal. Reliance was placed on Telkom Kenya Limited vs. John Ochanda (Suing on his own behalf and on behalf of 996 former employees of Telkom Kenya Ltd  eKLR Githinji, Karanja & Kiage JJA observed as follows;
20.In Jersey Evening Post Limited vs. Al Thani  JLR at 542 at 550 cited in Raila Odinga & 2 Others vs. IEBC & 3 Others  eKLR to submit that this Court is functus officio.The Respondent urged this court based on the law to dismiss the Chamber Summons in its entirety.
21.I have considered the submissions and authorities relied upon parties in the matter.
22.The question for determination is whether this Court has the requisite jurisdiction to resentence the Applicant pursuant to the Court of Appeal case No. 312 of 2018; Evans Wanjala Wanyonyi vs. Republic eKLR.
Whether This Court Is Functus Officio
23.The Applicant has urged this court to consider the period of 12 years he has spent in custody and acquit him but the Prosecution Counsel asserted that this Court is functus officio since it heard and substantively adjudicated in the Machakos High Court Criminal Appeal No. 108 of 2010 where the Trial Court sentence of imprisonment for life was upheld.
24.The Prosecution cited the case of Raila Odinga & 2 others vs Independent Electoral & Boundaries Commission & 3 others eKLR where the Supreme Court stated;
25.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 Kiarie Waweru Kiarie J. in the case of Joseph Maburu alias Ayub vs. Republic  eKLR where the Learned Judge stated that:-
26.This Court in Machakos Criminal Appeal No. 108 2010 upheld the Trial Court sentence. The appeal was before a court of similar, equal, competent and concurrent jurisdiction to this Court. This Court is functus officio.
27.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.
28.In the 2016 Judiciary of Kenya Sentencing Policy Guidelines lists the objectives of sentencing at page 15, paragraph 4.1 inter alia that the objective of sentencing was Deterrence: To deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences.
29.In Muruatetu Case(supra) the Supreme Court relied on the case of Vinter and others vs. the United Kingdom (Applications nos. 66069/09, 130/10 and 3896/10) in which the Court held that:
30.It is possible that the 12 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.
31.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.
32.The Court’s has considered the merits of the Chamber Summons on this Court’s jurisdiction and the resentencing law and policy, particularly applicability of the decision of Evans Wanjala Wanyonyi vs. Republic  eKLR which the Applicant has largely relied on, was decided 6th June, 2019 before the Supreme Court in Francis Karioko Muruatetu & another vs. Republic; Katiba Institute & 5 others (Amicus Curiae)  eKLR issued directives on offences that attract mandatory sentences.
33.On 6th July 2021, the Supreme Court in Francis Karioko Muruatetu & another vs. Republic; Katiba Institute & 5 others (Amicus Curiae)  eKLR ( herein referred to as Muruatetu 2) clarified that Muruatetu case  eKLR (supra) and the Judiciary Sentencing Policy Guidelines apply only applicable to and in respect to sentences of murder under Sections 203 and 204 of the Penal Code. The Supreme Court stated at paragraph 18 that:-
34.It follows therefore that the Applicant charged with offence of defilement under the Sexual Offences Act will not benefit from the guidelines in Muruatetu 2 case.
Section 333(2) Of The Criminal Procedure Code
35.In the reliefs sought by the Applicant, this court is urged to apply the provisions of Section 333(2) of the CPC and the time he had served in remand be factored in.
36.The Judiciary Sentencing Policy Guidelines at paragraph 7.10 and 7.11is to the effect that the proviso to Section 333 (2) of the Criminal Procedure Code obligates the court to consider the time already served in custody if the convicted person had been in custody during the trial. Similarly, the Appeal No 108 of 2010 was not availed to this Court
37.This Court despite several correspondence from Deputy Registrar Machakos High Court; dated 17/2/2021,25/10/2021& 4/2/2021 to Kithimani Law Courts for the Original Trial Court ‘s File proceedings and judgment to be availed to this Court, the original Court file was not availed. The allegations with regard to resentencing and/or computation of sentence under 333(2) CPC cannot be verified and considered at this stage without the original Court file.
38.The Court notes with concern, the Applicant claimed in his application that he was tried and convicted in Yatta Court yet the Court file was in Kithimani Law Courts as per correspondence. Due to absence of the Original Court file and evidence of the appeal by the High Court, the court cannot apply Section 333(2) CPC at this stage.
39.Except as per the DPP/Prosecution records and submissions, this Court cannot verify and/or confirm whether the Trial Court or this court took or did not take into account the period the Applicant spent in custody. A copy of the judgment both from the Trial Court and the High Court have not been attached to enable this Court address itself on the issue.
40.The Court is functus officio. The Applicant recourse is before the Court of Appeal. Article 50 (2) (q) of the Constitution is clear that the Applicant would seek redress before a higher court, in this case the Court of Appeal.
Disposition1.In the upshot, this Court lacks requisite jurisdiction to review the sentence as this Court heard and determined Appeal 108 of 2010 upheld conviction and sentence of life imprisonment.2.The Chamber Summons is an abuse of the court process. It lacks merit and is hereby dismissed.3.The Applicant to lodge appeal in Court of Appeal as provided by Article 50 (2)(q) of the ConstitutionIt is so ordered.