[2022] KEHC 10271 (KLR)
The court held that it could not exercise its discretion to review the applicant's sentence or consider probation under section 333(2) of the Criminal Procedure Code without first having sight of the trial records and any appeal records. The court therefore directed the Deputy Registrar to call for the relevant...
Source-derived case information.
- Citation
- [2022] KEHC 10271 (KLR)
- Parties
- Applicant: Victor Ashiundu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E014 of 2021
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Review of Sentence
- Outcome
- Interim orders issued; substantive determination deferred pending receipt of trial and appeal records.
- Judges
- WM Musyoka
- Legal Topics
- Sentence Review, Remand Period Credit, Probation Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Victor Ashiundu
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Review of Sentence
Legal Issues
- 1 Whether the applicant is entitled to have the period spent in remand deducted from his sentence under section 333(2) of the Criminal Procedure Code.
- 2 Whether the applicant should be placed on probation instead of serving the remainder of his sentence.
Ratio Decidendi
The court held that it could not exercise its discretion to review the applicant's sentence or consider probation under section 333(2) of the Criminal Procedure Code without first having sight of the trial records and any appeal records. The court therefore directed the Deputy Registrar to call for the relevant records before making a substantive determination on the application.
Court Disposition
Interim orders issued; substantive determination deferred pending receipt of trial and appeal records.
Orders
- The Deputy Registrar is directed to call for the trial records in Kakamega CMCRCC No. 1021 of 2018.
- The matter shall be mentioned on July 28, 2022.
Full Case Text
Judgment text and source record
20 paragraphs
Ashiundu v Republic (Miscellaneous Criminal Application E014 of 2021) [2022] KEHC 10271 (KLR) (24 June 2022) (Ruling)
Neutral citation: [2022] KEHC 10271 (KLR)
Republic of Kenya
In the High Court at Kakamega
Miscellaneous Criminal Application E014 of 2021
WM Musyoka, J
June 24, 2022
Between
Victor Ashiundu
Applicant
and
Republic
Respondent
Ruling
1. The applicant in this matter seeks a review of sentence under section 333(2) of the Criminal Procedure Code, cap 75, Laws of Kenya, and prays to be placed on probation. He would like the time he spent in remand to be reckoned in determining his final sentence.
2. He avers that the trial court had sentenced him to five years imprisonment for simple robbery, contrary to section 295 of the Penal Code, cap 63, Laws of Kenya.
3. The applicant has an arguable case. It merits consideration, but I will not be able to exercise discretion under section 333(2) of the Criminal Procedure Code, unless I have sight of the trial records, and the appeal records from the High Court and the Court of Appeal.
4. Consequently, I do hereby direct the Deputy Registrar to call for the trial records in Kakamega CMCRCC No. 1021 of 2018.
5. The matter shall be mentioned on July 28, 2022. A production order shall issue. Copies of this ruling to be made available to the applicant and the Office of the Director of Public Prosecutions.
DELIVERED, DATED AND SIGNED AT KAKAMEGA ON THIS 24THDAY OF JUNE, 2022WM MUSYOKAJUDGEErick Zalo, Court Assistant.Victor Ashiundu, the applicant, in person.Mr. Mwangi, instructed by the Director of Public Prosecutions, for the respondent.