[2022] KEHC 10840 (KLR)

Bako v Republic (Criminal Revision E081 of 2022) [2022] KEHC 10840 (KLR) (Crim) (9 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10840 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Revision E081 of 2022

LN Mutende, J

June 9, 2022

Between

Ousman Ibrahim Bako

Applicant

and

Republic

Respondent

Ruling

1. Ousman Ibrahim Bako, the Applicant and another were charged with a myriad of offences before the Magistrate’s Court. They were convicted and sentenced for eight of the offences. Aggrieved, they appealed, an appeal that was heard and determined by Kimaru J. on 25th October, 2020.

2. By an application dated 25th April, 2022, the applicant, seeks review in order for the sentence meted out to be reduced. The application is premised on an affidavit deposed by the applicant where he deposes that time spent in custody as provided by Section 333 (2) of the Criminal Procedure Code (CPC) was not taken into consideration by the trial court, and that he has served 2/3 of the sentence.

3. At the hearing of the application, learned Counsel Mr. Kimathi urged that the applicant was convicted and sentenced to serve ten (10) years imprisonment by the trial court. Subsequently Kimaru J. reduced the sentence to seven (7) years imprisonment, a sentence that was to be effective from the date of sentencing. That the period he spent in custody, from 14th January, 2016 was not considered as required by Section 333(2) of the CPC. He sought an order that the applicant having been in custody for 2/3 of the sentence, he should be released and repatriated to Cameroon.

4. The State through Ms. Chege opposed the application. It urged that the court’s jurisdiction has not been properly invoked as the issue raised was dealt with by a court of concurrent jurisdiction who reached a finding that the trial court had taken into account time spent in custody. And, that issues of remission were not for the court to determine.

5. In response, Mr. Kimathi called upon the court to uphold provisions of Article 159 of the Constitution.

6. This court has revisional jurisdiction over the subordinate court which can only be exercised where the subordinate court has exercised jurisdiction not vested in it by law and/or has acted illegally or with material irregularity which must be corrected. (See Article 165 (6) (7) of the Constitution and Section 362 of the Criminal Procedure Code).

7. Section 333 (2) of the CPC provides that:“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"

8. In his judgment, Kimaru J. who presided over the appeal and hence a court of concurrent jurisdiction with this court stated thus:“In the present appeal, it was clear to the court that the trial court committed no error in principle or applied wrong considerations in arriving at the said sentence. The trial court took into account the period that the Appellants were in remand custody prior to their conviction. Taking into consideration that the maximum custodial sentence that the Appellants could have served is life imprisonment, the sentence of seven (7) years imprisonment, taking into account the economic damage that this country could have faced had the counterfeit currency been released on circulation, was extremely lenient. This court will not interfere with the same. The only issue that the Appellants have persuaded this court as regard sentence, is the custodial sentences imposed shall run concurrently instead of consecutively. For the avoidance of doubt, the Appellants shall serve (7) years imprisonment with effect from the date of their sentence by the trial court. Upon completion of their sentence, they shall be repatriated to their respective countries of origin.”

9. The upshot of the above is that this court is functus officio as its mandate to determine the matter expired. I cannot purport to re-examine the decision rendered by Kimaru J. because I will be sitting as an appellate court which is unacceptable in law.

10. Therefore, the application lacks merit and is accordingly dismissed.

11. It is so ordered

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI, THIS 9TH DAY OF JUNE, 2022. L. N. MUTENDEJUDGEIN THE PRESENCE OF:ApplicantMr. Otieno for the StateMs. Mwaniki holding brief for Mr. Kimathi for ApplicantCourt Assistant - Mutai