Keroro v Republic (Criminal Revision E039 of 2022)  KEHC 2210 (KLR) (9 March 2023) (Judgment)
Neutral citation:  KEHC 2210 (KLR)
Republic of Kenya
Criminal Revision E039 of 2022
WA Okwany, J
March 9, 2023
Geofrey Akunga Keroro
1.The Petitioner herein, Geoffrey Akunga Keroro, was convicted by this Court (differently constituted) in Nyamira High Court in Criminal Case No. 42 of 2015 of the offence of murder on 20th December 2018 and sentenced to serve 20 years imprisonment. He did not appeal against the conviction or sentence.
2.This file is before me for revision under Section 362 and 364 of the Criminal Procedure code.
3.The Petitioner filed this petition on 18th August 2022 seeking orders under Section 333(2) of the Criminal Procedure Code which provides that the trial court, while sentencing, shall take into consideration the period spent in custody pending hearing and determination of the case. The Petitioner contends that he is remorseful for the offence that he committed, that he has fully reformed and is now ready to be reintegrated back to the society. He seeks the reduction of the sentence that he is currently serving and faults the trial court for failing to consider the 9 years that he had spent in custody into account while passing the sentence.
4.I will now proceed and consider the competency of the Petition given its background facts.
5.It is imperative to mention that the jurisdiction of a court of law is donated by the constitution and the statute. In Samuel Kamau Macharia vs KCB & 2 others, Civil application No. 2 of 2011 it was held that: -
6.As I have already stated hereinabove, the petition before me is for review of sentence under Section 333(2) of the Criminal Procedure Code which, he alleges, was overlooked by the trial court. It is therefore important to examine the provisions of the law in regard to review of sentences or orders in a criminal case.
7.Article 50(2) of the Constitution provides: -
8.Article 165(6) of the Constitution empowers the High Court to exercise supervisory jurisdiction over subordinate courts.
9.Section 362 of the Criminal Procedure provides: -
10.Section 364 of the same code empowers the High court to exercise its revisionary powers ….conferred to it as a court of appeal by Sections 354, 357 and 358 and may enhance sentence.
11.The Constitution is clear that a person can only apply for review of an order or sentence in a criminal case to a higher court. Section 362 of the Criminal Procedure code limits the revisionary powers of the High Court to orders of the subordinate court. This means that this court has no power to stretch its wings further than the law permits.
12.In the present case, the Petitioner seeks a review of the sentence of this Court. My finding is that the Petition is misconceived as this court does not have revisionary powers over its own sentence.
13.The provisions of section 362 and 364 of the Criminal Procedure Code empowers this court to review the orders of the trial magistrate where a mistake, irregularity or illegality is found to have occurred or where such orders were given without jurisdiction.
14.I have perused the Supreme Court petition No. 15 of 2017 Francis Muruatetu & Another that the petitioner relied in seeking the resentencing. The Supreme Court examined comparative jurisprudence and stated:-
15.My understanding of the pronouncement by the Supreme Court is that petitions for resentencing of the petitioners charged and convicted of the offence of murder contrary to sections 203 as read with 204 of the Penal Code is only in respect to the death sentence. In the present case, the Petitioner was not given the death sentence and I therefore find that the principles espoused in the Muruatetu case are not applicable to this case.
16.Section 333(2) of the Criminal Procedure Code provides that: -
17.The duty to consider the period spent in custody while awaiting trial is also contained in the Judiciary Sentencing Policy Guidelines (under clauses 7.10 and 7.11) where it is provided that: -
18.The Court of Appeal acknowledged the duty to take in account the period an accused person had remained in custody in sentencing (under section 333(2) of the Criminal Procedure Code) in Ahamad Abolfathi Mohammed & Another vs. Republic  eKLR. (see also Bethwel Wilson Kibor vs. Republic  eKLR).
19.It is therefore clear that it is mandatory that the period which an accused has been held in custody prior to being sentenced be taken into account in meting out the sentence where it is not hindered by other provisions of the law.
20.In addition to my above finding that this court does not have revisionary powers over its own sentence, I find that the proper forum that the Petitioner should have addressed his grievance with the sentence should have been through an appeal to the Court of Appeal. I find that this court became functus officio the moment it rendered its verdict and sentence and cannot therefore be seen to turn around and reconsider/review the sentence.
21.My above findings notwithstanding, and even assuming, for argument’s sake, that this court had the jurisdiction to review the sentence, I still find that the Petition is misconceived as a perusal of the record reveals that the trial court took into account the years that the Petitioner spent in custody during sentencing when she rendered herself, in part, as follows: -
22.Having regard to the findings and observations that I have made in this judgment, I find that the instant Petition is not merited and I accordingly dismiss it.
23.It is so ordered.
RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NYAMIRA ON THIS 9TH DAY OF MARCH 2023.W. A. OKWANYJUDGE