1.Before the court is an application challenging the constitutional validity of the terms of a sentence of a trial court, filed by the applicant who previously unsuccessfully appealed a conviction and sentence for imprisonment for 10 years for the offence of robbery with violence c/s 296 (2) of the Penal Code in this court decision in MERU HCCRA NO. 15 of 2020.
2.The applicant principally pleads the Article 27 of the Constitution and contends that failure to direct that the sentence of imprisonment for 10 years imposed by the trial court upon conviction for robbery with violence c/s 296 (2) of the Penal Code violates his right to equal protection and equal benefit of the law, and in his written submissions as follows:Reason Wherefore:My Lordship, I kindly beg this Honorable Court in compliance with Articles50 (2) (p) 27(1)(2)(4)(5)(6) of the Constitution and Section 333(2) of the Criminal Procedure Code to order the sentence of 10 years to run from the date of arrest which is 8/2/2015”
3.At the hearing the applicant relied on his written submissions and urged the court to relook the matter and review the sentence.
4.The DPP opposed the petition by self-explanatory grounds of opposition dated as follows:
5.The Counsel for the DPP emphasised at the hearing that –
The Trial Court File
6.The Court was not able to secure the availing of the trial court file but from the certified record of proceedings in the High Court appeal file, this court was above to stablish that the applicant had been on bail during his trial and no question of period spent in custody therefore arose in terms of section 333 (2) of the Penal Code.
7.The Record of the trial court shows that on 7/4/2015, the applicant who was the accused No. 3 on the charge sheet had his surety was approved and his release ordered as follows:
8.Then just before judgment, when on 18/11/2019 after the defence closed it case the trial court sought to reserve judgment for 6/12/2019, the applicant is shown on record as having requested for another date as he had a family meeting on the proposed date, indicating that he was out on bond all the while during his trial:
9.There is nothing on the record to show that his bail was subsequently cancelled and he was remanded. The allegation in his submissions had he had been in pre-trial detention for 5 years in incorrect.
Judgment Of This Court On Appeal
10.Moreover, this court having already ruled in the matter by its judgment on appeal in HCCCRA No. 15 of 2020, Jeremiah Gitonga Baskwani & another v Republic  eKLR the Court is functus officio and it cannot properly reopen the same question which it has determined. In its judgment of the Court ruled with regard to the appeal from sentence as follows:
11.The applicant is obliged to move the Court of Appeal on a second appeal on a question of law.
12.Indeed, the now famous procedure for re-sentencing is a remedy devised by the Supreme Court in Muruatetu I, Francis Karioko Muruatetu & another v Republic  eKLR upon its decision on the constitutionality of the mandatory death sentence in murder cases where in outlawing the mandatory sentence of death it ordered that persons sentenced upon the hitherto understanding of the law as prescribing a mandatory sentence of death for murder may seek resentencing at the High Court without necessity of appeal.
13.The Supreme Court guidelines of 6/7/2021 in Muruatetu II, Muruatetu & another v Republic; Katiba Institute & 4 others (Amicus Curiae) (Petition 15 & 16 of 2015)  KESC 31 (KLR) (6 July 2021) (Directions) clearly apply only to the death penalty with the counsel as regards resentencing that:The resentencing procedure does not apply where it is contended that the sentence is unlawful.
14.There is no scope for re-sentencing where the challenge is on legality of the sentence imposed, which is the clear province of appeal. That would be an error of law which can only be perfected on appeal. The Court finds that the applicant in this case is compelled to take up his challenge on the legality of sentence to the Court of Appeal, this court having become functus officio (see Maina v. R (1989) KLR 506 (Bosire, J. as he then was)) by its order dismissing the appeal from the sentence of the trial court as aforesaid.
15.However, if it is merely sought to correct a failure to direct in terms of section 333 (2) of the Criminal Procedure Code “the sentence shall take account of the period spent in custody”, the interest of justice may require immediate rectification. The court considers that the failure to direct that the sentence commences from the date of arrest /arraignment or otherwise to take into account period of pre-trial detention in accordance with section 333(2) of the Criminal Procedure Code may be rectified under the principle of slip rule on clerical or arithmetic corrections.
16.Accordingly, for the reasons set out above, the Petition herein for review of the terms of the sentence of imprisonment for ten (10) years for the offence of robbery with violence c/s 296 (2) of the Penal Code is allowed to the extent only that the period of two months when the appellant was in custody during his trial, between his arrest on 8/2/2015 and release on bail on 7/4/2015, will be taken into account in the computation of his imprisonment term.