[2019] KEHC 1208 (KLR)
The court found that the applicant was not in remand custody during the period claimed, but was instead serving sentences from previous convictions. The applicant's lack of candour and attempt to mislead the court disqualified him from receiving the discretionary relief sought. The application for consolidation of...
Source-derived case information.
- Citation
- [2019] KEHC 1208 (KLR)
- Parties
- Applicant: James Kegecha Magige; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 232 & 288 of 2019
- Procedural Posture
- Criminal Revision / Ruling on Application for Sentence Consolidation and Consideration of Remand Period
- Outcome
- application dismissed
- Judges
- LK Kimaru
- Legal Topics
- Sentencing Principles, Consolidation of Sentences, Remand Custody Credit, False Information to Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Kegecha Magige
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Sentence Consolidation and Consideration of Remand Period
Legal Issues
- 1 Whether the applicant is entitled to consolidation of sentences from multiple convictions.
- 2 Whether the period spent in remand custody should be considered in determining the custodial sentence.
- 3 Whether the applicant misled the court regarding his custody status during trial.
Ratio Decidendi
The court found that the applicant was not in remand custody during the period claimed, but was instead serving sentences from previous convictions. The applicant's lack of candour and attempt to mislead the court disqualified him from receiving the discretionary relief sought. The application for consolidation of sentences and consideration of remand period was therefore dismissed for lack of merit.
Court Disposition
application dismissed
Orders
- The applicant's applications are dismissed for lack of merit.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CRIMINAL DIVISION
CRIMINAL REVISION NO.232 & 288 OF 2019
JAMES KEGECHA MAGIGE..........APPLICANT
VERSUS
REPUBLIC.....................................RESPONDENT
RULING
The Applicant, James Kegecha Magige was convicted of three counts under the Penal Code in Kibera Chief Magistrate’s Court Criminal Case No.2042 of 2014. He was convicted of making a document without authoritycontrary to Section 357, uttering a false document with intent to deceive contrary to Section 357(b) and obtaining goods by false pretences. In respect of the 1st count, he was sentenced to pay a fine of Kshs.300,000/- or serve two (2) years imprisonment. In respect of the 2nd count, he was ordered to pay a fine of Kshs.50,000/- or serve one (1) year imprisonment. In respect of the 3rd count, he was ordered to pay a fine of Kshs.50,000/- or serve one (1) year imprisonment. The default sentences were ordered to run concurrently. The sentence was meted out on 28th August 2019.
The Applicant faced other charges in Kibera Chief Magistrate’s Court Criminal Case No.859 of 2016. He was convicted of stealing a motor vehicle contrary to Section 278A as read with Section 268 of the Penal Code, making a false document without authoritycontrary to Section 357(a) of the Penal Code and uttering a false document contrary to Section 353 of the Penal Code. In respect of the 1st count, he was sentenced to serve seven (7) years imprisonment. In respect of the 2nd count, he was ordered to serve seven (7) years imprisonment and in respect of the 3rd count, he was ordered to serve three (3) years imprisonment. The sentences were ordered to run concurrently.
The Applicant applied to this court to have the sentences consolidated and further, for the court to take into consideration that he had been in remand custody for three (3) years prior to his conviction. He was therefore asking for that period to be taken into account in determining the custodial sentence that he is to serve. The application was not opposed by the State. However, this court became aware that the Applicant had previously filed an application for revision of sentence before this court. That was in Criminal Revision No.487 of 2017. In the application, the Applicant was seeking consolidation of his sentences in two previous convictions. That was in Nairobi Chief Magistrate’s Court Criminal Case No.344 of 2013 (Milimani) and Nairobi Chief Magistrate’s Court Criminal Case No.305 of 2016 (Milimani). In both cases, the Applicant was sentenced to serve custodial sentences.
The Applicant was therefore being economical with the truth when he states that he was in remand custody during the trial of the subsequent cases that are subject of this application. The Applicant was NOT in remand custody but was serving sentence at the time that he was convicted and sentenced in the subsequent cases. A fundamental tenet of justice is that he who seeks relief before the court must be candid and tell the court the truth. In the present application, it was clear that the Applicant was misleading the court when he claimed that he was in remand custody during the trial period in the subsequent criminal cases. This court cannot exercise its discretion in favour of an applicant who is prepared to blatantly lie to the court with a view to securing a decision in his favour.
The upshot of the above reasons is that the Applicant’s applications lack merit and are hereby dismissed. It is so ordered.
DATED AT NAIROBI THIS 19TH DAY OF DECEMBER 2019
L. KIMARU
JUDGE