1.Undated Notice of Motion seeking mainly for an order that the balance of his sentence be substituted with a probationary sentence in the interest of justice. The Applicant Benard Kipkemoi Chepkwony was charged with the offence of Manslaughter Contrary to Section 202 as read with Section 204 of the Penal Code in Molo SPMCC No.19 of 2012 and upon trial he was convicted and sentenced to serve 30 years’ imprisonment on 19th July, 2013.
2.Being dissatisfied with the said decision, he lodged an Appeal to this court being Criminal Appeal No.161 of 2013 but the same was dismissed on 18th July, 2014.
3.Undeterred, the Applicant filed an Appeal before the Court of Appeal vide Criminal Appeal No. E023 of 2022.However, on 4th July,2023 he withdrew the same.
4.On 10th May,2013, the Applicant filed the instant
5.The Petition is premised on the grounds: -a.That this Honourable Court has original and unlimited jurisdiction to hear and determine this petition under Articles 165(3) (9) of the Constitution 2010.b.That the Petitioner has been in custody for over 8 years a period which he has reformed and engaged fruitfully in vocational training.c.That the Petitioner is utterly remorseful of the offence committed and fully regrets the unprecedented circumstances under which the fateful offence happened.d.That the petitioner hails from a poor family and continue to suffer irreparably as a result of the prolonged sentence which has subjected his siblings who relied on him severe suffering.e.That during the conviction and sentence, the petitioner was a young man of tender age and the court did not seek for a probation report or victim’s report in the interest of justice.f.The petitioner’s health continues to deteriorate and would wish to urgently seek for a specialized treatment while serving his probationary sentence.g.That it is in the spirit of constitution that an accused person once convicted should serve the lease severe sentence.h.That the spirit of the constitution is further moving away from retributive to restorative justice.
6.The Application is supported by an affidavit of the Applicant wherein he reiterates the above grounds.
7.The Application was argued through written submissions.
8.The Applicant submitted that this court under Article 165(5)(a)(b) of the Constitution is clothed with requisite jurisdiction to hear and determine this case. Reliance was placed on the case of Samuel Kamau Macharia & another vs Kenya Commercial Bank Limited & 2 others  e KLR for the proposition that a court’s jurisdiction flows from either the constitution or legislation or both and that the court cannot arrogate itself jurisdiction exceeding that which is conferred upon it by the law.
9.The Applicant posited that this court can hear and determine resentencing application. In support of this position, he relied on the cases of Francis Karioko Muruatetu & another vs Republic  eKLR, Philip Mueke Maingi & 2 others vs Republic  eKLR & William Okungu Kittiny Vs Republic  eKLR.
10.The Applicant argued that sentencing is an integral part in the trial process. He cited the case of Alister Anthony Pereira vs State of Maharashtra where the court held inter alia on sentencing that: -
11.The applicant contended that for 11 years he has been in incarceration, he has painfully learnt that crime does not pay, has fruitfully engaged in vocational trainings and acquired viable skills, has undergone counselling session which have led to a total positive change in behaviour that has earned him a recommendation from the prison authorities, has regretted the offence committed and he is now aware of the detrimental effects of being in bad company, he is utterly remorseful of the offence committed and has even endeavoured to seek forgiveness from the deceased family and that he is now of age and cannot be influenced by peer pressure anymore.
12.He urged this court to also consider that he was a first time offender and was intoxicated at the time of commission of the offence.
13.He prayed that this court in determining this case, to be guided by Judiciary Sentencing Policy Guidelines 2016; Mitigating factors as enunciated in the case of Francis Muruatetu vs R  eKLR and Article 50(2) (p) of the Constitution 2010.
14.The Applicant further urged the court to invoke section 333(2) of the Criminal Procedure Code and consider the period he served in remand custody pending the hearing and disposal of the trial.
15.The state counsel on behalf of the Respondent submitted that the sentence of 30 years meted out against the Applicant was confirmed on Appeal. She argued that the High Court Judge directed that the Applicant will be eligible for parole upon serving 20 years and that to date he has not served 20 years as directed, and as such this court is bereft of jurisdiction to reverse an order of a court of concurrent jurisdiction.
Analysis and Determination
16.The main issues which arise for determination is Whether this Court has jurisdiction to reverse an order issued by a court of concurrent Jurisdiction and whether the orders sought should be granted.
17.The Supreme Court of Kenya, in the case of Republic v Karisa Chengo & 2 others  eKLR stated that:
18.It is trite law that a court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law, and that a court cannot expand its jurisdiction through judicial craft. (See Samuel Kamau Macharia & Another V. KCB & 2 Others App. No. 2/2011).
19.The jurisdiction of the High court is provided for under article 165(3) of the Constitution and includes which states: -
20.It is clearly expressed under Article 165(5) as follows: -
22.It is clear therefore that there is no law which bestows this court with jurisdiction to review a decision by a court of concurrent jurisdiction.
23.The Court of Appeal in Bellevue Development Company Ltd v Francis Gikonyo & 7 others  eKLR in regards to whether a judge has jurisdiction to supervise judges of equal status and jurisdiction held as follows: -
24.In the instant case, my brother Justice Anyara Emukule (as he then was) while determining the Applicants Appeal in regards to sentencing stated as follows: -
25.The Applicant was sentenced to 30 years’ imprisonment on 19th July,2013. To date he has served 10 years’ imprisonment. The prayer therefore that his remaining sentence to be substituted with a probation period cannot be granted as that will be tantamount to reversing an order made by a court of concurrent jurisdiction.
26.I also note that the Applicant has urged this court to invoke section 333(2) of the Criminal Procedure Code and consider the period he served in remand custody pending the hearing and disposal of the trial. This issue was not considered by either the appellate or the trial court.
27.Section 333(2) of the Criminal Procedure Code, states as follows:(2)“Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code. Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody”.
28.It has been stated that in invoking section 333(2) of the Criminal Procedure Code, the court is not required to embark on an arithmetic journey to calculate time to be spent in custody. In the case of Bukenya vs. Uganda (Criminal Appeal No. 17 of 2010)  UGSC 3 (29 January 2013) it was held that;
29.It is my understanding of the above decision that the court is only required to take account of the time spent in remand custody. This can be done by simply stating when the sentence will commence and the period to include the time spent in custody.
30.The provisions of section 333(2) of the Criminal Procedure Code was the subject of the decision in Ahamad Abolfathi Mohammed & Another vs Republic eKLR where the Court of Appeal held that:-
31.The same court in Bethwel Wilson Kibor vs Republic eKLR expressed itself as follows:-
32.The Judiciary Sentencing Policy Guidelines provide as follows:
33.I have perused the trial court record and I note that the trial court meted the sentence against the Applicant without specifically stating the period which it was to commence. This means that the applicant’s term commenced on the day he was sentenced. This left out the period that he had spent in remand custody, prior to his conviction and sentencing.
34.In the case of Osman Mohamed Balagha v Republic  eKLR Aroni J. noted that ;
35.I am therefore of the view that the trial court failed to comply with the mandatory provisions of the said section 333(2) of the Criminal Procedure Code.
36.The trial court record shows that the Applicant was first arraigned in Court on 4th January, 2012. He was in remand custody throughout the trial.
37.I therefore correct the error and order that the applicant’s sentence ought to have commenced from this date of 4.1.2012.
38.It is so ordered.