[2023] KEHC 1305 (KLR)
The court found that the trial court had already considered the 37 months the applicant spent in custody when passing the concurrent 10-year sentences for robbery with violence and rape. There was no evidence that the trial court failed to comply with section 333(2) of the Criminal Procedure Code or that the...
Source-derived case information.
- Citation
- [2023] KEHC 1305 (KLR)
- Parties
- Applicant: Josphat Kithinji Gichu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E092 of 2022
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Sentence Review Under Section 333 of the Criminal Procedure Code
- Outcome
- application dismissed
- Judges
- HK Chemitei
- Legal Topics
- Sentencing, Robbery With Violence, Rape, Pre Sentence Custody, Section 333 Criminal Procedure Code
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Josphat Kithinji Gichu
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Sentence Review Under Section 333 of the Criminal Procedure Code
Legal Issues
- 1 Whether the period spent in custody by the applicant prior to sentencing should be reckoned as part of the sentence under section 333 of the Criminal Procedure Code.
- 2 Whether the trial court considered the period spent in custody when passing sentence.
Ratio Decidendi
The court found that the trial court had already considered the 37 months the applicant spent in custody when passing the concurrent 10-year sentences for robbery with violence and rape. There was no evidence that the trial court failed to comply with section 333(2) of the Criminal Procedure Code or that the sentence was excessive or unlawful. Consequently, there was no basis for the High Court to interfere with the sentence or to grant the orders sought by the applicant.
Court Disposition
application dismissed
Orders
- The application for sentence review under section 333 of the Criminal Procedure Code is dismissed.
Full Case Text
Judgment text and source record
22 paragraphs
Gichu v Republic (Miscellaneous Criminal Application E092 of 2022) [2023] KEHC 1305 (KLR) (1 March 2023) (Ruling)
Neutral citation: [2023] KEHC 1305 (KLR)
Republic of Kenya
In the High Court at Nakuru
Miscellaneous Criminal Application E092 of 2022
HK Chemitei, J
March 1, 2023
Between
Josphat Kithinji Gichu
Applicant
and
Republic
Respondent
Ruling
1. The applicant on July 15, 2020 was convicted of the offence of robbery with violence contrary to section 296(2) of the penal codeas well as rape. He was sentence to 10 years’ imprisonment on the two charges and the same were to run concurrently.
2. The applicant it seems did not prefer any appeal but instead filed the undated motion herein seeking that this court invokes the provisions of section 333 of theCriminal Procedure Codeand reckon the period he spent in custody as part of the 10 years above.
3. The learned state counsel opposed the application and argued that the sentence was too lenient considering the nature of the offences committed by the applicant.
4. The court has perused the record and it is clear that indeed the offences were heinous and he took advantage of the complainant who was alone and she could not get help. Further it is apparent that the trial court took into consideration the period of 37 months the applicant had spent in custody when meting out the sentence.
5. This court will only interfere if it considers the same to have been excessive in the circumstances or for any other unlawful act that will warrant its interference.
6. For now, the same has not been shown and there is no reason to interfere with the trial’s courts finding and sentence. In any case both sentences contrary to the applicant’s averments were to run concurrently.
7. The application is otherwise dismissed.
DATED SIGNED AND DELIVERED AT NAKURU VIA VIDEO LINK THIS 1STMARCH 2023. H. K. CHEMITEI.JUDGE