Benedict Mutuku Ngumbi v Republic

b. That the application filed herein is not only misconceived and bad in law but also misplaced since this court is functus officio in this matter. c. That this Honourable court lacks jurisdiction to hear and determine this application since the sentence sought to be reviewed was passed by the Court of Appeal and this court had no supervisory jurisdiction over that Court as provided under Article 165(6) of the Constitution. d. That the Respondent did not violate any fundamental rights or freedoms of the Applicant during the trial process. 3. The Applicant was charged in Chief Magistrate Court at Machakos in Criminal Case No. 1127 of 2013 with robbery with violence contrary to section 296(2) of the Penal Code. The particulars are that on 3rd September 2013 at Vyulya market, Vyulya location, Mwala district within Machakos County, the Applicant with others jointly robbed Mutuku Kitonyi of Kshs.1408/= cash, a Nokia mobile phone C1230 and 200 gms of tea leaves all valued at Kshs.3,558/= and immediately before or after the time of such robbery wounded the said Mutuku Kitonyi. On considering the prosecution’s case, the trial court convicted and sentenced the Applicant to death on 19/4/2014. 4. Being dissatisfied with the conviction and sentence, the Applicant filed a first appeal to the High Court at Machakos in Criminal Appeal No. 234 of 2014 which was consolidated with HCCRA No. 236 of 2014 Peter Maingi Kioko v Republic. The High Court relying on Okeno v Republic (1972) E.A 32 being a court of first appeal, evaluated and analysed the evidence after which it dismissed the appeal in its entirety as the said appeal lacked merit. The conviction and sentence of the trial court were upheld by the High Court on 17th September 2015. 5. Again, being dissatisfied with the decision of the High Court, the Applicant filed a second appeal in the Court of Appeal at Nairobi in Criminal Appeal No. 70 of 2017. The Court of Appeal on 9th October 2020 dismissed the appeal on conviction but allowed the appeal on sentence and set aside the death sentence and substituted the sentence to 20 (twenty) years imprisonment from the 19th November 2014 when he was sentenced by the trial court. 6. The applicant’s instant application was directed to be canvassed through written submissions. The applicant filed 6 pages undated submissions while the Respondent’s submissions are date 20th February 2025. Applicant’s Submissions 7. The Applicant submitted that he had been in remand custody since his arrest on 20/9/2013 up to the date of conviction which amounts to 1 year and 2 months which period was not factored on the imposed sentence. 8. That the duty to take into account the period an accused had remained in custody pending trial in sentencing under the proviso to Section 333(2) of the CPC is couched in mandatory terms and that the High Court has powers to review sentences under the said provision in order to determine the appropriate sentences. The Applicant cited various cases under the stated provision of section 333(2) of the CPC. 9. The Applicant also submitted on his individual mitigation circumstances and factors and argued that he is qualified to be considered for sentence review under Judiciary’s Sentencing Guidelines (2023) paragraph 5.1.15. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14387/eng@2025-06-17 2

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10. The Applicant invited this court to consider that the time already served pursuant to section 35 of the Penal Code is sufficient to pay for the price of the crime he committed. 11. The Applicant invited the court to intervene on the imposed sentence in accordance with the provisions of Article 25(c) and 50(2) of the Constitution and make clear and proportionate orders on the same. Respondent’s Submissions 12. The Respondent submitted that it did not violate the Applicant's fundamental freedom as enshrined by article 25(c) and 50(2) of the constitution. Article 25(c) provides for the right to a fair trial. The Respondent submitted that the Applicant’s right was not violated during the trial. He was heard fairly, cross examined the witnesses and gave his defence. Article 50 in providing for fair hearing was adhered to and the Applicant was accorded a fair hearing. Further, the Respondent submitted that the Applicant if aggrieved, should make the proper application in the Constitutional court to seek remedy of any constitutional violations. 13. In relation to Section 333(2) of the Criminal procedure Code, the Respondent urged the court to read the judgment of the high court and the trial court to arrive to their decision as regarding the time spent in custody by the Applicant being considered. The Respondent invited the Court to examine and consider if the same can be factored in the sentence. 14 As regards Section 35 of the Penal Code, the Respondent objected to the said prayer and cited the said Section as follows: Section 35 of the Penal Code provides that: Absolute and conditional discharge 15. (l) Where a court by or before which a person is convicted of an offence is of opinion, having regard to the circumstances including the nature of the offence and the character of the offender, that it is inexpedient to inflict punishment and that a probation order under the Probation of Offenders Act (Cgp_J2H_) is not appropriate, the court may make an order discharging him absolutely, or, if the court thinks fit, discharging him subject to the condition that he commits no offence during such period, not exceeding twelve months from the date of the order, as may be specified therein. (2) Before making an order discharging a person subject to the condition referred to in subsection (l), the court shall explain to the offender in ordinary language that if he commits another offence during the period of conditional discharge, he shall be liable to be sentenced for the original offence. (3) Where an order discharging an offender under this section is made, the court may order him to pay the whole, or any part, of the costs of and incidental to the prosecution, and of any compensation adjudged under Section 31. The Respondent submitted that the Prosecution proved its case beyond reasonable doubt and that both courts of appeal agreed as much and upheld the conviction. Further the Applicant has not advanced reasons to warrant a discharge under Section 35 of the penal Code. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14387/eng@2025-06-17 3

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Analysis and Determination 16. I have carefully considered the application, the grounds of opposition and the parties’ submissions. The issues I frame for determination are as follows: i. Whether the Respondent grossly violated the Petitioner's fundamental freedom right as enshrined by article 25(c) and 50(2) of the constitution. ii. Whether this Honourable Court may be pleased to make an order to invoke Section 35 of the Penal Code hence consider the entire time served since he was deprived his liberty. iii. Whether this court can make an order to invoke section 333(2) of the CPC on the issue of time spent in remand custody. 17. On the first issue whether the Respondent grossly violated the Petitioner's fundamental freedom right as enshrined by article 25(c) and 50(2) of the constitution. This court observes that the Applicant has not demonstrated how his fundamental freedom was grossly violated. The Applicant is serving a lawful and proper sentence imposed upon line for the crime he committed. This court cannot grant any relief on any allegation of violation of human rights in the manner sought by the Applicant. The Applicant should move the court appropriately under a Constitutional Petition for any such relief. 18. On the second issue as to whether this court can make an order to invoke Section 35 of the Penal Code hence consider entire time served since, he was deprived his liberty. This court is of the considered view that the Applicant herein was convicted by the trial court which could only have exercised its discretion under Section 35 of the Penal Code. The Applicant does not qualify to be discharged under the said provision of the law. 199. Lastly on the third issue as to whether this court can make an order to invoke Section 333(2) of the CPC on the issue of time spent in remand custody. The Respondent does not oppose this prayer; however, they invite this court to examine and consider if the same can be factored in the sentence. 20. Section 333(2) of the CPC is couched in mandatory terms and provides that: “ (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. 19. The Judiciary Sentencing Policy Guidelines state as follows in respect to Section 333 (2) of the CPC:1. The proviso to Section 333 (2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody if the convicted person had been in custody during the trial. Failure to do so impacts on the overall period of detention which may result in an excessive punishment that is not proportional to the offence committed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14387/eng@2025-06-17 4

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2. 22. In determining the period of imprisonment that should be served by an offender, the court must take into account the period in which the offender was held in custody during the trial. In Bethwel Wilson Kibor vs. Republic [2009] eKLR it was held: “ By proviso to section 333(2) of Criminal Procedure Code where a person sentenced has been held in custody prior to such sentence, the sentence shall take account of the period spent in custody. Ombija, J. who sentenced the appellant did not specifically state that he had taken into account the 9 years period that the appellant had been in custody. The appellant told us that as at 22nd September, 2009 he had been in custody for ten years and one month. We think that all these incidents ought to have been taken into account in assessing sentence. In view of the foregoing, we are satisfied that the appellant has been sufficiently punished. We therefore allow this appeal and reduce the sentence to the period that the appellant has already served. He is accordingly to be set free forthwith unless otherwise lawfully held.” 23. I have perused the Court of Appeal judgement at Nairobi in Criminal Appeal No. 70 of 2017. The Court of Appeal on 9th October 2020 dismissed the Applicant’s appeal on conviction but allowed the appeal on sentence and set aside the death sentence and substituted the sentence to 20 (twenty) years imprisonment from the 19th November 2014 when he was sentenced by the trial court. At paragraph 32 of the said judgement, the Court of Appeal took into account that the Applicant had been in custody for seven (7) years when passing the sentence of 20 years herein. 24. It cannot be said therefore that Section 333(2) was not adhered to in circumstances of this matter. This prayer is altogether declined. 25. I find that the sentence meted by the Court of Appeal was correct and proper and this court has no jurisdiction to interfere with the same. In wish to add that Article 165 of the Constitution grants this Court the powers to only supervise subordinate courts and stipulates as follows: (6) 26. The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court. Consequently, I find that the instant application lacks merit and is dismissed in its entirety. RULING WRITTEN, DATED & SIGNED AT MACHAKOS THIS 17TH JUNE 2025 NOEL I. ADAGI JUDGE DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 17TH JUNE 2025 In the presence of : In person................. for Applicant Ms. Agatha......... ..for Respondent Milly................ Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14387/eng@2025-06-17 5

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