[2022] KEHC 3217 (KLR)
The court held that it lacked jurisdiction to review or interfere with a sentence imposed by another judge of concurrent jurisdiction in the High Court. The applicant's complaint regarding the failure to consider time spent in custody under Section 333(2) of the Criminal Procedure Code is a matter for appeal, not...
Source-derived case information.
- Citation
- [2022] KEHC 3217 (KLR)
- Parties
- Applicant: Leonard Kanari Gitui; Respondent: Director of Public Prosecution
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application E041 of 2022
- Procedural Posture
- Criminal Miscellaneous Application / Ruling on Application for Review of Sentence
- Outcome
- application dismissed for want of jurisdiction
- Judges
- LN Mutende
- Legal Topics
- Sentence Review, Time Spent in Custody, Revisionary Jurisdiction, Jurisdiction of High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Leonard Kanari Gitui
Applicant
Director of Public Prosecution
Respondent
Procedural Posture
Criminal Miscellaneous Application / Ruling on Application for Review of Sentence
Legal Issues
- 1 Whether the High Court has jurisdiction to review a sentence imposed by another High Court judge in the same court.
- 2 Whether the applicant is entitled to have the time spent in custody prior to sentencing considered under Section 333(2) of the Criminal Procedure Code.
Ratio Decidendi
The court held that it lacked jurisdiction to review or interfere with a sentence imposed by another judge of concurrent jurisdiction in the High Court. The applicant's complaint regarding the failure to consider time spent in custody under Section 333(2) of the Criminal Procedure Code is a matter for appeal, not revision. The sentencing judge expressly stated that the period of pre-sentence incarceration was considered. Therefore, the application for review was dismissed for want of jurisdiction, and the applicant was advised that the appropriate remedy was to appeal to the Court of Appeal if dissatisfied with the sentence.
Court Disposition
application dismissed for want of jurisdiction
Orders
- The application for review is dismissed.
- If dissatisfied, the applicant should appeal to the Court of Appeal.
Full Case Text
Judgment text and source record
27 paragraphs
Gitui v Director of Public Prosecution (Criminal Miscellaneous Application E041 of 2022) [2022] KEHC 3217 (KLR) (Crim) (4 July 2022) (Ruling)
Neutral citation: [2022] KEHC 3217 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Criminal
Criminal Miscellaneous Application E041 of 2022
LN Mutende, J
July 4, 2022
Between
Leonard Kanari Gitui
Applicant
and
Director of Public Prosecution
Respondent
Ruling
1. Upon arraignment on 10th June, 2016, Leonard Kanari Gitui the applicant was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. It was stated that he murdered Christopher Muganda Adagi.
2. Having been taken through full trial, the court found him guilty of manslaughter, convicted and sentenced him to serve six (6) years imprisonment on 7th October, 2019.
3. On 31st day of January, 2022 the applicant approached this court through a Notice of Motion seeking review on grounds that the court did not take into account time spent in custody as required by Section 333(2) of the Criminal Procedure Code (CPC) and Section 46(2) of the Prisons Act.
4. During hearing it was urged that time spent in custody was not considered. In this regard, the applicant relied on the case of Ahmad Abolfathi Mohamme Vs. Republic (2018) eKLR where the court held that:“By dint of section 333 (2) of the Criminal Procedure Code, the court was obliged to take into account the period that they had spent in custody before they were sentenced. Although the learned judge stated that he had taken into account the period the appellants had been in custody, he ordered that their sentence shall take effect from the date of their conviction by the trial court. With respect, there is no evidence that the court took into account the period already spent by the appellants in custody. “Taking into account” the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody. It is not enough for the court to merely state that it has taken into account the period already spent in custody and still order thesentence to run from the date of the conviction because that amounts to ignoring altogether the period already spent in custody. …. We find that the first appellate court misdirected itself in that respect and should have directed the appellants’ sentence of imprisonment to run from the date of their arrest on 19th June 2012. ”
5. Then the case of Vincent Sila Jona and 87 othersvs. The Kenya Prison Service and 2 othersPetition No. 15 of 2020 where the court was of the view that the court is enjoined to establish the period the convict was in custody prior to the date of sentencing.
6. The application was opposed by the Respondents through, Ms. Chege, Prosecution Counsel, who urged that time spent in custody was considered and this court being of concurrent jurisdiction with the court that granted the orders cannot interfere with the sentence.
7. I have considered averments of both parties herein. I have also perused the primary file which has the ruling on sentence dated 7th October, 2019.
8. The application is brought pursuant to Section 362 of the CPCa provision of law that grants revisionary jurisdiction to this court. The High Court can only exercise revisionary jurisdiction where there is an illegality, impropriety, incorrectness of any finding or sentence of a subordinate court.
9. It is important to note that this matter was determined by the High Court which at paragraph 19 of the Ruling stated that:“I have considered that the accused was incarcerated for a period of 8 months before he was released on bond”
10. Questioning whether or not that was in compliance with what is provided by Section 333(2) of the CPC is a matter to be interrogated on appeal. As correctly submitted by Counsel for the State, the order having been made by Lesiit J. (As she then was) this court lacks jurisdiction to interrogate it. If indeed the applicant was dissatisfied, he should have appealed to the Court of Appel.
11. It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI, THIS 4TH DAY OF JULY, 2022. L. N. MUTENDEJUDGEIN THE PRESENCE OF:ApplicantMs. Chege - ODPPCourt Assistant - Mutai