[2022] KEHC 16213 (KLR)

Jumamosi v Republic (Criminal Revision E292 of 2022) [2022] KEHC 16213 (KLR) (7 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16213 (KLR)

Republic of Kenya

In the High Court at Voi

Criminal Revision E292 of 2022

JN Onyiego, J

December 7, 2022

Between

John Sowene Jumamosi

Applicant

and

Republic

Respondent

(From original conviction and sentence in Criminal Case no E330 of 2021 of the Principal Magistrate’s Court at Taveta)

Ruling

1. The applicant herein was arraigned before Taveta Principal Magistrate’s Court facing the charge of stealing of a motor cycle contrary to section 268 as read out with section 278A of the Penal Code.

2. Particulars were that on August 20, 2021 at Kiwalwa area at Taveta Sub-County within Taita – Taveta County, stole a motor cycle TVS 150 registration number KMEW 706Q valued at Kshs 112,600/= the property of Hana Mashao Menetu.

3. Having returned a plea of not guilty, the matter proceeded to full hearing. The applicant was convicted to serve 3 years imprisonment after taking into consideration the applicant’s mitigation and probation officer’s report which was unfavourable.

4. Subsequently, the applicant moved to this court vide a notice of motion filed on October 4, 2022 seeking review of the sentence on grounds that it was excessive and that the trial court did not take into account the period spent while in remand custody. During the hearing, the applicant urged the court to exercise mercy on him taking into account that he had reformed and that his family is suffering. Mr Sirima for the state opposed the application saying that the sentence is reasonable taking into account the seriousness of the offence. However, learned counsel did not oppose the prayer that the period spent in remand custody be taken into account.

5. I have considered the application herein and the response thereof. Pursuant to article 165 (6) and (7) of the Constitution, this court is empowered to exercise supervisory jurisdiction over subordinate courts. Further, under section 362 and 364 of the CPC the high court has powers to call for and examine a record of criminal proceedings before the subordinate court for purposes of satisfying itself as to the correctness, legality, propriety of any sentence passed or order made, and the regularity of proceedings of any such subordinate court.

6. Although sentencing is at the discretion of the trial court, the High Court can intervene where the trial court has applied wrong principles or failed to apply correct principles in arriving at the impugned sentence. In this case, the applicant took plea on September 13, 2021 and remained in custody until January 18, 2022 when he was sentenced. Therefore, he stayed in remand custody for 4 months and 9 days. From the record, the trial court did not consider this period as required under section 333(2) of the CPC. Under section 333(2) of the CPCand the judiciary sentencing policy, a trial court is obligated to take into consideration the period spent in remand custody by an accused person before pronouncing the appropriate sentence. See Ahmad Abolfathi Mohamed & another Cr Appeal no 135 of 2016(2018) eKLR and Michael Thenge Kisina v Repulic (2021) eKLR.

7. Accordingly, the sentence of 3 years is substituted with a sentence of 2 years and 8 months after taking into account the period spent in remand custody.

8. As to the aspect of excessive sentence, the court took into consideration the mitigation on record. Unfortunately, the probation report was not favourable either. Taking into account circumstances under which the offence was committed and the seriousness of the offence, a period of 2 years and 8 months is reasonable.

9. Accordingly, the application herein is allowed only to the extent that the period spent in remand custody shall be taken into account in computing sentence.Right of appeal 14 days.

DATED SIGNED AND DELIVERED IN OPEN COURT THIS 7TH DAY OF DECEMBER, 2022. HON J ONYIEGOJUDGE