[2021] KEHC 2058 (KLR)
The court found that the trial court had already considered the period the applicant spent in remand custody, as evidenced by the lenient sentence imposed, which was below the statutory minimum. The trial court had also noted the applicant's mitigation, including his time in custody, before passing sentence....
Source-derived case information.
- Citation
- [2021] KEHC 2058 (KLR)
- Parties
- Applicant: Alex Kibe Kibiru; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 73 of 2019
- Procedural Posture
- Criminal Revision / Ruling
- Outcome
- application dismissed
- Judges
- DO Ogembo
- Legal Topics
- Sentencing Principles, Remand Period Credit, Firearms Offences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alex Kibe Kibiru
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling
Legal Issues
- 1 Whether the trial court failed to account for the period the applicant spent in remand custody when passing sentence.
- 2 Whether the applicant is entitled to a revision of his sentence under section 333(2) of the Criminal Procedure Code.
Ratio Decidendi
The court found that the trial court had already considered the period the applicant spent in remand custody, as evidenced by the lenient sentence imposed, which was below the statutory minimum. The trial court had also noted the applicant's mitigation, including his time in custody, before passing sentence. Therefore, the application for revision lacked merit as the requirements of section 333(2) of the Criminal Procedure Code had been satisfied.
Court Disposition
application dismissed
Orders
- The application dated 8.3.2019 is dismissed wholly.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL REVISION73 OF 2019
ALEX KIBE KIBIRU ...................APPLICANT
VERSUS
REPUBLIC ................................ RESPONDENT
RULING
The application of the applicant ALEX KIBE KIBIRU, filed herein on 18. 3.2019 and dated 8. 3.2019 seeks that his sentence be revised to account for the period of 3 years and 6 months that he remained remanded in custody awaiting trial. The prosecution side, through learned counsel, Ms. Kibathi, in response, submitted that the applicant was in custody from 8. 12. 2014 to 19. 7.2018, when sentence was passed.
That the trial court, in sentencing the applicant, had noted that it had taken into account the law, mitigation of the applicant and time spent in remand. That he was sentenced to serve 3 years on each count to run consecutively. In effect therefore, that he was sentenced to a period far less than that provided for of not less than 7 yours imprisonment. It was lastly submitted that the court duly considered the period spent in custody.
I have considered the submissions of both the applicant and he prosecution. This is basically an application for revision under section 333(2) of the Criminal Procedure Code, which declares that in sentencing, the court ought to take into account the period that the accused has taken in custody while awaiting determination of his trial.
A closer observation of this matter will assist this court in determine whether or not the trial court complied with this requirement of the law. The applicant was charged with being in possession of firearm without a firearm certificate contrary to section 4(1)(2(a) of Firearms Act, Cap 114 laws. The 2nd count he faced related to ammunitions, under the same section of the law.
Section 4(1)(2)(a) of the Firearms Act, Cap 114 Laws of Kenya, provides for a sentence of not less than 7 years and not more than 15 years imprisonment. In our instant case the court sentenced the applicant to serve 3 years imprisonment on each count. Same were ordered to run consecutively.
In the sentencing proceedings, of 19. 7.2018, the applicant was accorded the opportunity to mitigate. In his mitigation, the accused pleaded with the court to take into account the fact that he had been in custody for 2 years. The court proceeded to note that it had considered the mitigation of the accused. It then passed the sentence.
What comes out of the sentence is that the court passed a rather lenient sentence against the applicant. The sentence was in fact way below the minimum sentence provided. And in doing so, it took into account the mitigation of the applicant, including the fact that he had been in custody while his case progressed.
It is therefore incorrect to submit that the trial court had failed to account for the period spent in custody in the sentence meted out. The application of the applicant dated 8. 3.2019 therefore lacks in any merit. I dismiss the same wholly Orders accordingly.
D. O. OGEMBO
JUDGE
19. 11. 2021.
Court:
Ruling read out in presence of the accused (Nairobi West) and Ms. Kibathi for state.
D. O. OGEMBO
JUDGE
19. 11. 2021.