Case ID:167037

William Mwangale Ongoma v Republic [2020] eKLR

Case Metadata

Case Number:

Criminal Revision Case E015 of 2020

Parties:

William Mwangale Ongoma v Republic

Date Delivered:

30 Nov 2020

Case Class:

Criminal

Court:

High Court at Nairobi (Milimani Law Courts)

Case Action:

Ruling

Judge(s):

Jessie Wanjiku Lesiit

Citation:

William Mwangale Ongoma v Republic [2020] eKLR

Case History:

Being an application for revision of the sentence of Milimani CM’s Criminal Case No. 2136 of 2018 by Hon. Z. Abdul SRM, on 29th May, 2020

Court Division:

Criminal

County:

Nairobi

History Docket No:

Criminal Case 2136 of 2018

History Magistrate:

Hon. Z. Abdul SRM

History County:

Nairobi

Case Outcome:

Application dismissed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUPLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

-CRIMINAL REVISION CASE NO. E015 OF 2020

(Being an application for revision of the sentence of Milimani CM’s

Criminal Case No. 2136 of 2018 by Hon. Z. Abdul SRM, on 29

th

May, 2020)

LESIIT, J

WILLIAM MWANGALE ONGOMA.......................................................................APPLICANT

VERSUS

REPUBLIC................................................................................................................RESPONDENT

RULING

1. The Applicant,

WILLIAM MWANGALE ONGOMA

filed a Notice of Motion application dated 30

th

July 2020. He seeks five prayers as follows:

“i. That I am the above inmate at Nairobi Remand & Allocation Maximum Security Prisons serving custodial sentence of Ten (10) years.

ii. That I was found guilty of the offence of Count 1. Robbery with Violence contrary to Section 296(2) of the Penal Code and Count 2. Robbery with Violence Contrary to Section 296 (2) of the Penal Code.

iii. That I beseech the Hon. Judge to find it prudent and Review my custodial sentence from ten (10) years to a non-custodial sentence with the option of an affordable fine.

iv. That this application is supported with sworn affidavit attached below.

v. That upon entering a plea of not guilty I have been in remand for duration of four (4) years and I wish the court to consider this.”

2. The application is supported by an affidavit sworn by the Applicant in which he contends that he was convicted for the offence of

robbery

with

violence

contrary to

Section 296(2)

of the

Penal Code

and sentenced to 10 years’ imprisonment. He contends that he has been in remand custody pending trial for 4 years. He also contends that he is 29 years old, married with 2 children and seeks review of his sentence to a non-custodial sentence.

3. In his oral submissions in court, the Applicant urged that he was initially convicted of robbery with violence charges and sentenced to death. He contends that when he filed his appeal in the High Court, the Judge ordered a retrial of his case.

4. The Applicant urged that after the retrial, he was convicted in two counts of

robbery

with

violence

contrary to

section 296(2)

of the

Penal Code

. He was sentenced to 10 years’ imprisonment. He now urges the court to review his sentence. He urged that he has been in custody for four years now.

5. Mr. Mutuma, learned Prosecution Counsel did not oppose the application. He urged that if the court was inclined to consider the application, then it should take into account the fact that the Applicant took plea on 5

th

August, 2016 and has been in custody for 4 years.

6. The Applicant has invoked

Sections 362

and

364

of the

Criminal Procedure Code

. These two provisions provide as follows:

“362.

The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.

364.

(1) In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may -

(a) in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358, and may enhance the sentence;

(b) in the case of any other order other than an order of acquittal, alter or reverse the order.

(2) No order under this section shall be made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by an advocate in his own defence:

Provided that this subsection shall not apply to an order made where a subordinate court has failed to pass a sentence which it was required to pass under the written law creating the offence concerned.

(3) Where the sentence dealt with under this section has been passed by a subordinate court, the High Court shall not inflict a greater punishment for the offence which in the opinion of the High Court the accused has committed than might have been inflicted by the court which imposed the sentence.

(4) Nothing in this section shall be deemed to authorize the High Court to convert a finding of acquittal into one of conviction.

(5) When an appeal lies from a finding, sentence or order, and no appeal is brought, no proceeding by way of revision shall be entertained at the insistence of the party who could have appealed.

7. A court in revision is not concerned with the merits of the decision of the court but rather on the impropriety, mistake, illegality of the order, sentence or judgment.

8. The basis of the Applicant’s application is spelt out under prayer sought as order (iv) of his application which provides:

“That upon entering a plea of not guilty I have been in remand for duration of four (4) years and I wish the court to consider this.”

9. Ordinarily, such a challenge to the sentence should be made by way of an appeal. And

section 364 (5)

of the Criminal Procedure Code is clear on this where it provides

“

(5) When an appeal lies from a finding, sentence or order, and no appeal is brought, no proceeding by way of revision shall be entertained at the insistence of the party who could have appealed.”

10. This court’s powers of revision are limited to satisfying itself as to the correctness, legality or propriety of any findings, sentence, or order recorded or passed and as to the regularity of any proceeding of any such subordinate court and in exercising supervisory jurisdiction under

Article 165(6)

of the

Constitution

the court does not exercise appellate jurisdiction and therefore cannot review or re-weigh evidence upon which the determination of the lower court was based and can only upset an order which it considers erroneous, without jurisdiction and constitutes gross violation of the fair administration of justice. (See

Chris Phillip Obure v Republic [2020] eKLR)

11. I did consider the learned trial magistrates ruling on sentence. The learned trial magistrate Observed:

“I have considered the mitigation by the accused person. He is remorseful and is said to be a first offender. The offences committed are very serious, i.e. two counts of robbery with violence. I have considered the time spent in custody from the initial arrest and subsequent conviction. The proceedings were as a result of the high court judgment that ordered for re-trial. Therefore the accused has been in custody for close to four years from the initial arrest. He shall serve ten (10) years imprisonment in both counts one and two. Sentences to run concurrently.”

12. I have considered the observation by the learned trial magistrate. I find that the court took into account of the period spent in custody, not only during the pendency of the criminal case No. 2136 of 2018, but also during the pendency of the initial case No. 1210 of 2016 tried by Hon. K. Cheruiyot. There was no error, mistake, impropriety or illegality in the order of sentence passed by Hon. Andul, the learned trial magistrate. Accordingly, the application lacks in merit and is dismissed in its entirety.

DATED SIGNED AND DELIVERED THROUGH TEAMS THIS 30

th

DAY OF NOVEMBER, 2020

LESIIT, J

JUDGE

In the presence of

Kinyua.........................Court Assistant

Applicant in person...................present

M ............................For the Respondent

LESIIT, J.

JUDGE

November 30

th

, 2020