[2021] KEHC 2910 (KLR)
The High Court lacks jurisdiction to review or adjust the sentence imposed by the subordinate court solely for the purpose of considering the period spent in custody under section 333(2) of the Criminal Procedure Code. That power is vested in the trial court at the time of sentencing. If the applicant believes the...
Source-derived case information.
- Citation
- [2021] KEHC 2910 (KLR)
- Parties
- Applicant: James Maoga Maturi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E349 of 2021
- Procedural Posture
- Criminal Revision / Ruling on Application for Review of Sentence
- Outcome
- application dismissed for want of jurisdiction
- Judges
- GL Nzioka
- Legal Topics
- Sentence Review, Jurisdiction of Appellate Court, Custodial Period Credit, Criminal Procedure Code Section 333 2
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Maoga Maturi
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Review of Sentence
Legal Issues
- 1 Whether the High Court has jurisdiction to review the sentence imposed by the subordinate court to consider the period spent in custody under section 333(2) of the Criminal Procedure Code.
- 2 Whether the applicant's recourse lies in an appeal against sentence rather than a review application.
Ratio Decidendi
The High Court lacks jurisdiction to review or adjust the sentence imposed by the subordinate court solely for the purpose of considering the period spent in custody under section 333(2) of the Criminal Procedure Code. That power is vested in the trial court at the time of sentencing. If the applicant believes the sentence is harsh or that the period in custody was not considered, his proper recourse is to file an appeal against the sentence, not a revision application. Accordingly, the application for review is dismissed or struck out for want of jurisdiction.
Court Disposition
application dismissed for want of jurisdiction
Orders
- The application for review is dismissed or struck out for want of jurisdiction.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS CRIMINAL DIVISION
HCC REV NO E349 OF 2021
JAMES MAOGA MATURI .....................................................................APPLICANT
VERSUS
REPUBLIC............................................................................................RESPONDENT
RULING
1. By a notice of motion application filed in court on 26th August 2021, the applicant is seeking for an order that, the court be pleased to review the three (3) years sentence meted upon him vide Criminal Case Number 867 of 2019, at the Chief Magistrate’sCourt. In so doing, the court should consider the period that he was in custody during the trial, as required under section 333(2) of the Criminal Procedure Code.
2. The application is supported by a brief affidavit sworn by the applicant. The Respondent did not respond to the application. Be that as it were, an application for review under provisions of section 362 and 364 of the Criminal Procedure Code can be heard and determined by the court without hearing the parties in it. Having considered the same, I find that, as background facts reveal, the applicant was charged in the aforesaid case, with the offence of theft of motor vehicle contrary to section 278A of the Penal Code. The case was fully heard and Judgment delivered on 6th July 2021. Subsequently, after considering the applicant’s record and mitigation, he was fined Kshs300,000 in default; to serve three (3) years year’s imprisonment.
3. I note from the factors considered before sentence that, the court does not indicate whether the period the applicant was in custody was considered. Be that as it were, the provisions of section 333(2) of Criminal Procedure Code bestows upon the court pronouncing the sentence to take into account, the period the accused or convict was in custody. It does not bestow upon the appellate court the power to do so; unless it is passing the sentence. Therefore, the plea by the applicant herein could only have been considered by the learned trial Magistrate in the subordinate court. Having said so, the applicant recourse lies in filing an appeal against sentence, if in his considered opinion, the sentence is harsh. In that case, I find that, the court has no jurisdiction to entertain the subject application and I dismiss or order it struck out on that ground.
It is so ordered.
DATED DELIVERED VIRTUALLY AND SIGNED THIS 12TH DAY OF OCTOBER 2021.
GRACE L. NZIOKA
JUDGE
IN THE PRESENCE OF:
APPLICANT IN PERSON
MS KIBATHI FOR THE RESPONDENT
EDWIN OMBUNA – COURT ASSISTANT