Republic v Anthony Kiarie Njoroge & 4 Others

The subsection reproduced by the Court contains no limitation clause, unlike section 379(5), which governs persons acquitted at trial and which respondents' counsel apparently invoked for his one-month objection. Reasonableness therefore falls to be judged in all the circumstances. The Court accepted the State's account that the respondents evaded service despite an order of 31st January 2007 directing the Director of CID to serve them, so that warrants of arrest issued on 7th March 2007 before they surrendered to bail. The lapse of roughly two years was accordingly not unreasonable.

The trial judge deemed the three-year term to commence on 27th April 2002, the date of the offence, so the respondents, who never appealed, served nothing. This Court had already condemned the same device when dismissing the co-accused Gichiri's appeal, holding that custody before sentence may be credited but service cannot precede conviction. Adopting that reasoning, the Court held the respondents' sentences ought to be interfered with on that point alone and directed that their prison terms start soon after its judgment, with bonds cancelled.

Section 379(5A) confers revisionary powers to be exercised with regard to sentencing principles; discretion must be judicial and grounded in evidence. The trial judge, who heard the evidence, found no malice aforethought in a drunken village brawl that turned into a fatal beating. Unlike Batista Ligoni Beni, where vicious panga slashes bordered on murder and five years became fifteen, here there was no intention to kill. Unlike Mutuku v R, the delay was explained and the Court was correcting an error of law rather than enhancing. Enhancement was therefore refused.

Counsel for the respondents abandoned the complaint that the certificate was signed by the Director of Public Prosecutions, conceding Legal Notice No. 331 of 1996 delegated the Attorney General's powers under sections 81, 82 and Part VII of the Criminal Procedure Code. He further conceded the Attorney General enjoys no right of appeal, rendering any purported out-of-time appeal application nugatory. The strike-out therefore survived only on the limitation ground, which failed. The point was resolved by concession, not decision, and so states no ratio.