[2021] KEHC 4902 (KLR)
The court found that the trial magistrate, during sentencing, duly considered both the applicant's mitigation and the period spent in custody pending the conclusion of the trial. The sentence imposed was 10 years' imprisonment, which is below the statutory minimum of 20 years for the offence of defilement. The court...
Source-derived case information.
- Citation
- [2021] KEHC 4902 (KLR)
- Parties
- Applicant: Fredrick Mutuku Ngemu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 256 of 2019
- Procedural Posture
- Criminal Revision / Ruling on Application for Sentence Review
- Outcome
- application dismissed
- Judges
- DO Ogembo
- Legal Topics
- Sentencing Review, Remand Period Credit, Defilement Offence, Sexual Offences Act, Minimum Sentence, Mitigation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fredrick Mutuku Ngemu
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Sentence Review
Legal Issues
- 1 Whether the period spent in remand custody by the applicant should be factored into the sentence imposed by the trial court.
- 2 Whether the trial court complied with section 333(2) of the Criminal Procedure Code in sentencing the applicant.
Ratio Decidendi
The court found that the trial magistrate, during sentencing, duly considered both the applicant's mitigation and the period spent in custody pending the conclusion of the trial. The sentence imposed was 10 years' imprisonment, which is below the statutory minimum of 20 years for the offence of defilement. The court was satisfied that the provisions of section 333(2) of the Criminal Procedure Code were complied with by the trial court. Consequently, the application for review lacked merit and was dismissed.
Court Disposition
application dismissed
Orders
- The application for review of sentence is dismissed.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINALREVISIONCASE256 OF 2019
FREDRICK MUTUKU NGEMU....................APPLICANT
VERSUS
REPUBLIC................................................RESPONDENT
RULING
The applicant, FREDRICK MUTUKU NGEMU has filed a Notice of Motion Application herein on 7. 10. 2019. the application, based on section 333(2) of the Criminal Procedure Code, seeks review of his sentence. The application does not disclose much information, but seeks that the period spent in remand be factored in the sentence. He stated that he was arrested on 5. 7.2015 and was convicted on 8. 2.2019, and was never on bond.
The prosecution has opposed this application. That he was arrested on 15. 7.2015 and charged on 20. 7.2015 and later sentenced to serve 10 years’ imprisonment on 8. 2.2019. That the penalty provided for in law is not less that 20 years, and that the trial court duly took into account the time spent in custody. Counsel prayed that this application be dismissed.
I have considered the submissions of the applicant and also the response from the Respondent. I have also carefully considered the proceedings of the lower court with specific focus on the sentencing proceedings of 8. 2.2019.
Section 333(2) at the proviso dictates that the period the accused has spent in remand custody white awaiting trial out to be accounted for in the sentence. The applicant faced a charge of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act, No. 3 of 2006. Under this section, the sentence to be meted out is a term of not less than 20 years imprisonment. The applicant herein was sentenced to serve 10 years imprisonment. The sentence proceedings also clearly show that the trial magistrate duly considered the mitigation of the applicant and also the period he has spent in custody pending conclusion of his trial. I am therefore convinced that the trial magistrate in sentencing the applicant, duly satisfied the provisions of section 333(2) of the Criminal Procedure Code. This application of the applicant filed in this court on 7. 10. 2019 lacks any merit. I accordingly dismiss the same.
D. O. OGEMBO
JUDGE
26. 7.2021.
Court:
Read out in presence of the applicant (Kitengela Prison), and Mr. Kiragu, counsel for the state.
D. O. OGEMBO
JUDGE
26. 7.2021.