[2024] KEHC 15911 (KLR)
The court found that the applicant failed to demonstrate any valid reason or sufficient cause to warrant revision of the custodial sentence, as the trial court had already considered his mitigation, time spent in remand, and first offender status. However, the court noted that the period of 30 days spent in remand...
Source-derived case information.
- Citation
- [2024] KEHC 15911 (KLR)
- Parties
- Applicant: Ali Hatibu Dzumbembe; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kibera
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 283 of 2024
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Sentence
- Outcome
- Application dismissed with modification of sentence to account for remand period.
- Judges
- DR Kavedza
- Legal Topics
- Sentencing Principles, Revision of Sentence, Remand Custody Credit, Obtaining by False Pretences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ali Hatibu Dzumbembe
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the applicant has demonstrated sufficient cause to warrant revision of the custodial sentence imposed by the trial court.
- 2 Whether the period spent in remand custody by the applicant should be considered in computing the sentence.
Ratio Decidendi
The court found that the applicant failed to demonstrate any valid reason or sufficient cause to warrant revision of the custodial sentence, as the trial court had already considered his mitigation, time spent in remand, and first offender status. However, the court noted that the period of 30 days spent in remand custody prior to release on bail was not factored into the sentence computation. In accordance with section 333(2) of the Criminal Procedure Code and relevant appellate authority, the court ordered that the three-year sentence be reduced by thirty days to account for the remand period, with the sentence running from the date of conviction.
Court Disposition
Application dismissed with modification of sentence to account for remand period.
Orders
- The application for revision of sentence is dismissed.
- The sentence of three years imprisonment shall be reduced by thirty days to account for time spent in remand custody.
Full Case Text
Judgment text and source record
22 paragraphs
Dzumbembe v Republic (Criminal Revision 283 of 2024) [2024] KEHC 15911 (KLR) (17 December 2024) (Ruling)
Neutral citation: [2024] KEHC 15911 (KLR)
Republic of Kenya
In the High Court at Kibera
Criminal Revision 283 of 2024
DR Kavedza, J
December 17, 2024
Between
Ali Hatibu Dzumbembe
Applicant
and
Republic
Respondent
Ruling
1. The applicant was charged and after a full trial convicted for the offence of obtaining money by false pretences contrary to section 313 of the Penal Code. He was sentenced to three (3) years imprisonment.
2. The applicant submitted an undated application received on 11th November 2024, seeking revision of the sentence imposed. The grounds for the application are that he suffers from health complications, and he requests the court to revise the sentence to a non-custodial one.
3. I have considered the application, supporting grounds, and relevant law. The trial court record shows that the applicant’s mitigation, the time spent in remand, and his status as a first offender were duly considered before sentencing. The sentence imposed was lawful given the circumstances. Additionally, the applicant has not offered restitution to the complainant, despite the substantial sum obtained by false pretences.
4. In my view, no valid reason or sufficient cause has been presented to warrant revising the sentence imposed by the trial court. Therefore, the application is dismissed.
5. Nonetheless, the proviso to section 333 (2) of the Criminal Procedure Code obligates the court to take into account the time spent in remand custody during sentencing. This duty was acknowledged by the Court of Appeal in Ahamad Abolfathi Mohammed & Another vs. Republic [2018] eKLR and Bethwel Wilson Kibor vs. Republic [2009] eKLR and more recently in the High Court case of Vincent Sila Jona & 87 others vs Kenya Prison Service & 2 others [2021] eKLR.
6. From the record, the applicant was arrested on 19th May 2021 and released on bail on 18th June 2021. He therefore spent 30 day in remand custody which period was not considered during his sentencing.
7. In the premises, the sentence of three (3) years imprisonment shall be computed less by thirty (30) days and shall run from the date of the applicant’s conviction.Orders accordingly.
RULING DATED AND DELIVERED VIRTUALLY THIS 17THDAY OF DECEMBER 2024______________D. KAVEDZAJUDGE