George Muia Maithya v Republic

5. At the hearing of the application, the Respondent in opposing the application made oral submissions and submitted that the matter went through trial where the Applicant was charged with attempted murder. He attempted to murder Nduku Musyimi, the victim by cutting her on the head with a panga. He was convicted and sentenced to 30 years imprisonment on 27th October 2014 at the Machakos Chief magistrate’s Court in case No. 2884 of 2009. He filed an appeal at Machakos High Court in HCCRA No. 94 of 2015 which appeal was dismissed and the conviction and sentence upheld. He filed a second appeal to the Court of Appeal at Nairobi in COA CRA No. 6 of 2021 and on 23/3/2023 the Court of Appeal dismissed the Applicant’s appeal. 6. The Respondent challenged jurisdiction of this court to revise sentence herein as the matter has been handled by the Court of Appeal. Further, the Respondent submitted that in as much as the Probation Officer’s report is positive on suitability of the Applicant for sentence review, according to Section 220 (a) of the Penal Code, the prescribed sentence for the offence of attempted murder is life imprisonment. The court considered the circumstances of the case and the mitigation by the Applicant to hand him the 30 years imprisonment. The Respondent submitted that the said sentence should not be disturbed and that the Applicant should serve his full-term sentence as pronounced by both courts. That the circumstances of the case on how the Applicant attacked the victim were considered. The Respondent invited this court to peruse the lower court file record and consider the application. The Respondent prayed that the court does also consider the judgments of the High Court and Court of Appeal and dismiss the application in its entirety. 7. A Probation Service Sentence Review Report dated 27th November 2024 was filed in court on the even date. From the report, the Applicant is said to be aged 43 years old with no previous records of getting in conflict with the law. He admits committing the offence which he is remorseful about. He is pleading to the court to review his case. He pleaded to the court to consider subjecting him to a non -custodial sentence whose conditions he promised to abide by. 8. The Applicant’s family gave a positive report about him citing that he has been a well-behaved person since his childhood. They wondered what could have triggered him to commit the offence. They pleaded to the court to consider reviewing his case and exercise mercy on him. They also pleaded to the court to consider subjecting the Applicant to a non-custodial sentence. 9. The Applicant’s community gave a positive report about him citing that they have known him since his childhood as a well-behaved person with no record of criminality and hard-working person. They were shocked to hear that the Applicant had committed the offence before court. They pleaded to the court to consider reviewing his sentence. They welcomed the option of subjecting the Applicant to a non-custodial sentence. The Local Administration added their voice to that of the family and the community indicating that the Applicant had no previous records of getting into conflict with the law. They were in favour of sentence review. 10. The Applicant was described positively by both the family and community. Prior to this incidence, he lived amicably with the victim. He attributed commission of the offence to what he claims to be evil forces that took control of him and commanded him what to do and speak. He claimed that the evil forces had ordered him to shed blood and what he did was to comply. He claims that his father took him to a traditional healer and this issue was fully resolved during the time he was out of custody on bond pending the conclusion of the trial. 11. For the last ten years the Applicant has been in prison, he has learnt carpentry and has acquired a Grade III Certificate. He has also learnt a Fellowship and Worship course and was a warded a Certificate. In addition, he has gained skills in catering. The Applicant believes he has acquired skills that can help him https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14348/eng@2025-02-17 2

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live as a productive citizen. The Applicant is willing to serve a community service sentence at Wanzauni Primary School, Kinywani Primary School or Tututha Dispensary. 12. The Applicant has always enjoyed good health until five years back when he developed an asthmatic attack and has been on treatment and spends most of his time in a designated hall for asthmatic people in Kamiti Maximum Prison. The Prison Officers in Kamiti Maximum Prison gave a positive report about the Applicant and indicated that he has not had any disciplinary issue over the last ten years that he has been in prison. They supported his sentence review. 13. The victim Nduku Musyimi stated that her and the Applicant were working for the same employer and that they had no differences between them and that there was no relationship between her and the Applicant. The victim lamented that her life has never been the same again as the injuries inflicted on her made it difficult for her to work normally as she used to. She however, did not oppose to the option of Applicant’s sentence review. The secondary victims however demanded that the Applicant be compelled to compensate the victim before any sentence review is done. 14. The Applicant’s and the victim's families began a reconciliation talks in line with the Kamba customs and they agreed to have a joint clan meeting in March 2025 to discuss and agree on compensation for the victim as per the Kamba custom whenever there is an incident of blood shed like this one. Based on this social inquiry report, and the fact that the Applicant has shown progress and stability while in prison it is Probation Officer’s opinion that the Applicant has reformed to the level that he can be reintegrated into society. 15. This court has carefully considered the application, the supporting affidavit and the oral submissions by the State. The court has also considered the Probation Officer’s report which was presented before court on 27th November 2024. 16. The law on jurisdiction was stated by the Supreme Court in Samuel Kamau Macharia & another v Kenya Commercial Bank Ltd & 2 others, Application No. 2 of 2011 thus: “ A court’s jurisdiction flows from either the constitution or legislation or both. Thus, a court 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…”Under Article 50(2)(p) of the constitution, an applicant has a right to benefit from the least severe sentence and have his sentence reviewed. 17. In the case of Ogwoka v Republic (Criminal Appeal 171 of 2018) [2023] KECA 564 (KLR) (12 May 2023) it was held that: “ 10. Beyond dismissing this appeal, it is necessary, for good order, for this Court to pen a few words by way of guidance to the High Court (and appellants) who may find themselves in the same situation as the appellant in the future. These guidelines are necessary because of the real potential for judicial embarrassment and abuse of court which may occur where a shrewd, perhaps dishonest, inmate simultaneously pursues both an appeal before this Court and a petition or application for resentencing before the High Court. Such an inmate would end up with two judicial pronouncements from two layers of the court system; and the outcome (especially on sentence) may potentially conflict. Such an eventuality would not only cause judicial embarrassment but would amount to an abuse of the judicial process by allowing an inmate to https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14348/eng@2025-02-17 3

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“game” the system with the hope of cherry picking the outcome that best favours him. 11. In order to guard against this in future cases, we propose the following four guidelines: a. Where an appellant has filed an appeal to this Court, it is improper for that same appellant to pursue an application or petition for resentencing at the High Court. Such an appellant would have to make an election to either withdraw his appeal to this Court or to institute a petition or application for resentencing action. b. Where a litigant has filed both an appeal to this Court and a petition or application for resentencing at the High Court, the proper course is for the High Court to stay the petition or application before it and have the litigant come before this Court to either progress his appeal or to withdraw it. c. In those cases where the High Court has ascertained that the inmate had filed an appeal to this Court, the High Court should only proceed with the petition or application for resentencing once it has confirmed vide an order of this Court that the appeal which was pending before this Court has been withdrawn. d. As a matter of good practice, when a High Court is moved by an inmate through a petition or application for resentencing, it should request for certification from the Court of Appeal registry serving the area where the High Court is located attesting that the inmate in question does not have an appeal arising from the same trial pending before the Court of Appeal. The High Court should only proceed with the hearing of the petition or application for resentencing upon certification by the Court of Appeal registry that the inmate does not have an appeal pending before this Court or certification that any such appeal has been withdrawn. 18. In consideration of Guideline (d) in the case of Ogwoka (supra), this court has certified from the Court of Appeal judgment dated 3rd March 2023 arising from this matter that indeed the Applicant had filed an appeal No. 6 of 2021 but which appeal was dismissed. Therefore, there is no pending appeal before the Court of Appeal. In the present application, this court has taken into consideration the fact that the Applicant attempted to kill his workmate with whom they had no grudge or differences. The Applicant attributed this attack initially for the reason that the victim had infected him with HIV and later in the Probation Officer’s report he attributed the attack to evil forces that took control of him and commanded him what to do and speak. He claimed that the evil forces had ordered him to shed blood and what he did was to comply. 19. What is critical from the probation report is that the family of the Applicant, particularly his father, siblings and the relatives are willing to welcome him back home. The community has given positive report about the Applicant citing that they have known him since childhood, they describe him as a https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14348/eng@2025-02-17 4

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well-behaved person with no record of criminality. The Local Administration and the Prison Officers from Kamiti Maximum prison also gave a positive report about him. 20. The probation report recommends that the Applicant is suitable for sentence review. This court further noted that the victim was not opposed to the option of sentence review although she lamented that her life has never been the same again as she can no longer work the way she used to before the injuries were inflicted on her by the Applicant. The Applicant and the victim’s families have begun reconciliation talks in line with Kamba Customs and they have agreed to have a joint clan meeting in March 2025 to discuss and agree on the victim’s compensation. 21. Based on the Probation Report and the fact that the Applicant has shown progress and stability while in prison, it is my view that the Applicant has reformed to the level that he can be reintegrated into society. 22. It cannot be gainsaid that Section 26(3) High court (Organization and Administration) Act and Article 159 (2) (d) and 159 (3) the Constitution recognizes that beside mainstream court system, there are alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms of dispute resolution that shall be recognized and promoted. The traditional dispute resolution mechanisms shall not be used in a way that:a) Contravenes the Bill of Rights b) Is repugnant to justice and morality or results in outcomes that are repugnant to justice or morality; c) Is inconsistent with the Constitution or any written law 23. The judiciary is constitutionally obligated to promote alternative justice system as known and practiced by different communities. In order to meet its constitutional obligation, the judiciary has promulgated and put in place a policy to help anchor alternative justice in Kenya. 24. It is to this court an unwavering duty to promote every dispute resolution mechanism outside the court system and the only caution the court must administer to itself is the requirement that any such resolution must never contravene the bill of rights, be inconsistent to the constitution or written law and the same must pass the test of not being repugnant to justice and morality or give results which are themselves repugnant to justice and morality. 25. The constitutional recognition of alternative justice systems as one of the principles to guide courts in the exercise of judicial authority does not exclude criminal cases. This recognition restated the place of alternative justice systems in the administration of justice. Article 11 of the Constitution recognises culture as ‘the foundation of the nation and as the cumulative civilization of the Kenyan people and nation’. 26. The constitutional recognition of alternative justice systems as one of the principles to guide courts in the exercise of judicial authority does not exclude criminal cases. 27. In the premises therefore, this court considers the option to negotiate the matter at clan level as an approach to invite the benefit of making peace and healing the wounds inflicted by the crime and re-establish better relationship. This case therefore passes the test for reference to alternative justice resolution and hence this court will allow the parties to pursue the reconciliation talks in line with the Kamba customs considering that they have agreed to have a joint clan meeting in March 2025 to discuss and agree on compensation for the victim as per the Kamba customs and traditions whenever there is an incident of blood shed like in this case. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14348/eng@2025-02-17 5

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28. 29. Accordingly, this court makes the following orders:a) The family of the Applicant and the victim Nduku Musyimi are directed to pursue negotiations as planned with their clan on a reasonable and justifiable compensation settlement agreement. This has to be done in consultation with the office of the Director of Public Prosecution. b) The sentence review will be considered upon an update to the court on the outcome of the negotiations under order (a) above. It is so ordered. RULING WRITTEN, DATED, SIGNED & DELIVERED AT MACHAKOS THIS 17TH FEBRUARY 2025 NOEL I. ADAGI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14348/eng@2025-02-17 6

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