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Isigoli v Republic (Petition 54 of 2021) [2023] KEHC 18132 (KLR) (25 May 2023) (Judgment)
Neutral citation:
[2023] KEHC 18132 (KLR)
Republic of Kenya
Petition 54 of 2021
OA Sewe, J
May 25, 2023
IN THE MATTER OF ARTICLE 22(1) OF THE CONSTITUTION
AND
IN THE MATTER OF ARTICLES 23(1) AND 165(3) OF THE CONSTITUTION
AND
IN THE MATTER OF ARTICLES 19, 20, 24 AND 27 OF THE CONSTITUTION
AND
IN THE MATTER OF SECTION 333(2) OF THE CRIMINAL PROCEDURE CODE
Between
Kennedy Hamisi Isigoli
Petitioner
and
Republic
Respondent
Judgment
1.The petitioner herein was charged in Mombasa Chief Magistrate’s Court in Criminal Case No 2557 of 2011 with two counts of robbery with violence contrary to Section 296 (2) of the Penal Code, Chapter 63 of the Laws of Kenya. The particulars of the 1st Count were that on August 12, 2011 at Mamba Drive, Nyali Area in Kisauni District within Coast Province, being armed with a dangerous weapon, namely a knife robbed Hangin Sarah of her one digital camera make Nikon, cash Kshs 632/=, one blue towel, a pair of gloves, one bottle of water, one packet of tissue, a brown bag and a mobile phone make Nokia all valued at Kshs 43,032/=.
2.In respect of the 2nd Count, the particulars were that on the same date, time and place, the petitioner robbed Ducros Margaux of one digital camera make Samsung, one MP3 audio, one USB key, one kanga, one bikini, one sun cream, one visa credit card, one necklace, one purse, one bag and Kshs 12,080/= in cash, all valued at Kshs 53,968/=.
3.The charge sheet was later amended to include a 3rd Count of assault causing actual bodily harm contrary to Section 251 of the Penal Code. The particulars were that on August 12, 2011 at Reef Hotel in Nyali Area of Kisauni District within Coast Province, the petitioner assaulted Stanslous Mwakai causing him actual bodily harm.
4.Although he denied the charges, the petitioner was tried and found guilty in all three Counts. He was accordingly convicted thereof and sentenced to death in Count I on August 15, 2014. The sentences in respect of Count II and Count III were, in the circumstances, held in abeyance.
5.Being aggrieved by his conviction and sentence, the petitioner filed an appeal to the High Court vide Mombasa High Court Criminal Appeal No 148 of 2014: Kennedy Hamisi Isigoli v Republic. The appeal was heard and dismissed by Hon A Ongeri, J. on January 11, 2017. Undeterred, the petitioner filed a second appeal to the Court of Appeal vide Mombasa Criminal Appeal No 38 of 2018: Kennedy Hamisi Isigoli v Republic. The second appeal was similarly heard and determined; and while it failed on his conviction the petitioner’s sentence was reduced from a death sentence to 20 years’ imprisonment for Counts I and II. He was further sentenced to 2 years’ imprisonment in respect of Count III. The sentences were to run concurrently from the date of conviction by the trial court.
6.Thereafter, the petitioner filed the instant Petition seeking that his imprisonment be calculated from the date when he was arrested and charged; namely August 15, 2011. His Petition was accordingly filed pursuant to Section 333(2) of the Criminal Procedure Code and the assertion that he spent three (3) years in remand from his date of arrest up to August 15, 2014 when he was convicted and sentenced. The petitioner relied entirely on his Supporting Affidavit and prayed that his Petition be allowed.
7.On behalf of the respondent, Ms Anyumba, learned Counsel for the State, had no objection to the Petition herein.
8.I have carefully considered the Petition, which is fairly straightforward. It raises the single issue of whether the petitioner has made out a good case to warrant reconsideration of his sentence for purposes of Section 333(2) of the Criminal Procedure Code. That provisions states:
9.For purposes of uniformity therefore the Judiciary Sentencing Policy Guidelines (under Clauses 7.10 and 7.11) explain that: -
10 .It is plain therefore that failure to factor in the pre-sentence detention period, as complained of herein, would amount to a violation of an inmate’s fundamental right; and therefore that the Court has the jurisdiction to offer redress as appropriate. This was aptly discussed by Hon Odunga, J (as he then was) in Jona & 87 others v Kenya Prison Service & 2 others (Petition 15 of 2020) [2021] KEHC 457 (KLR) (18 January 2021) thus:
11 .As to what is entailed in taking into account the period an accused person had remained in custody in sentencing under Section 333(2) of the Criminal Procedure Code, the Court of Appeal expressed itself in Ahmad Abolfathi Mohammed & Another Criminal [2018] eKLR thus:
12 .In the instant matter the sentence imposed by the lower court did not lend itself to a consideration of Section 333(2) of the Criminal Procedure Code, granted that what was imposed was the death penalty. Indeed, even the sentence in respect of Count 3 which was for a fixed term of imprisonment had to be held in abeyance for that purpose. Hence, the imprisonment of the petitioner was imposed by the Court of Appeal and therefore the question to pose is whether the Court has the jurisdiction to further intervene in the matter.
13 .I have looked at the decision of the Court of Appeal in the petitioner’s Criminal Appeal No 38 of 2018. Here is what the Court of Appeal had to say: -
14 .It is therefore manifest that this was a deliberate decision on the part of the Court of Appeal that presupposes that the Court took into account the proviso to Section 333(2) of the Criminal Procedure Code, and therefore there is no room for further intervention by this Court. I find succour in the position taken in Jona & 87 others v Kenya Prison Service & 2 others (supra) that:
15 .The foregoing being my view, I find no merit in the Petition. It is accordingly dismissed and file marked as closed.It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 25TH DAY OF MAY 2023OLGA SEWEJUDGE
