[2022] KEHC 1804 (KLR)
The court found that the trial judge expressly considered the period the applicant had spent in custody prior to sentencing, as evidenced by the sentencing remarks. Therefore, the applicant's claim that the custodial period was not considered was unfounded. The application for revision of sentence lacked merit as...
Source-derived case information.
- Citation
- [2022] KEHC 1804 (KLR)
- Parties
- Applicant: Benson Ndegwa Kamau; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application E109 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Revision of Sentence
- Outcome
- application dismissed
- Judges
- GL Nzioka
- Legal Topics
- Sentence Revision, Pre Sentence Custody, Functus Officio, Murder Conviction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benson Ndegwa Kamau
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the trial court failed to consider the applicant's pre-sentence custodial period as required by section 333(2) of the Criminal Procedure Code.
- 2 Whether the High Court is functus officio and thus barred from revisiting the sentence imposed.
Ratio Decidendi
The court found that the trial judge expressly considered the period the applicant had spent in custody prior to sentencing, as evidenced by the sentencing remarks. Therefore, the applicant's claim that the custodial period was not considered was unfounded. The application for revision of sentence lacked merit as the legal requirement under section 333(2) of the Criminal Procedure Code had been satisfied. The court also noted the principle of functus officio, indicating that it could not revisit the sentence absent a legal basis. Accordingly, the application was dismissed.
Court Disposition
application dismissed
Orders
- The application for revision of sentence is dismissed.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
HIGH COURT MISCELLANEOUS APPLICATION NO E109 OF 2021
BENSON NDEGWA KAMAU.........................................................................APPLICANT
VERSUS
REPUBLIC...................................................................................................RESPONDENT
RULING
1. The applicant by a chamber summons application filed on 7th April 2021, is seeking for orders that, the Honourable court revise the sentence imposed upon him in; High Court Criminal Case No. 59 of 2015.
2. The application is based on the provisions of; section 362 of the Criminal Procedure Code, (though erroneously cited as; Article 164 of the Criminal Procedure Code). It is supported by undated affidavit sworn by the applicant, in which he literally reiterates the prayers in the application.
3. Be that as it were, he avers that, he was held in custody while on trial during the period of; 6th June 2015, to 17th February 2018, when he was convicted. However, when the court sentenced him, it did not take into account the subject period as required under the provisions of section 333(2) of the Criminal Procedure Code.
4. However, the application was opposed by the Respondent, vide grounds of opposition dated; 25th November 2021, in which it is averred that, the court is functus officio, in that litigation has to come to an end. Further, the application lacks merit and should be dismissed.
5. The parties relied on the materials before the court, and did not file any submissions and/or submitted orally. I have considered the application in the light of the said material, and I find that, the applicant was charged with the offence of; murder contrary to section 203 as read with section 204 of the penal code. The information was read to him, and he pleaded not guilty. The case proceeded to full hearing, and by a judgment dated; 28th February 2019, he was found guilty of murder and convicted accordingly.
6. However, the trial court deferred sentence and requested for a pre-sentence report. By a ruling dated; 19th July 2019, the applicant was sentenced to, serve twenty-five (25) years imprisonment, the sentence over which he seeks to be reviewed.
7. I have considered the ruling on sentence and note that, the Honourable Learned Judge stated, inter alia as follows:
“Taking into account that the convict has been in custody for a period of five (5) years and is aged twenty six (26) years, an appropriate imprisonment for a period of twenty five (25) years is a just, adequate and proportionate sentence herein to serve the two objectives set out herein……..”
8. From the aforesaid, it is clear that, the period that the applicant was in custody was considered during the sentencing process. I therefore find that, the application has no merit and I dismiss it.
It is so ordered.
DATED, DELIVERED AND SIGNED ON THIS 8TH DAY OF MARCH 2022.
GRACE L. NZIOKA
JUDGE
In the presence of: -
No appearance for the applicant
Ms Chege for the Respondent
Applicant present at Kamiti
Edwin Ombuna - Court Assistant.