[2019] KEHC 11204 (KLR)
The court found that the trial judge had expressly considered the period the applicant spent in remand custody before sentencing, as evidenced by the sentencing notes. Therefore, the applicant's claim that this period was not considered was factually incorrect. Furthermore, the court questioned its own jurisdiction...
Source-derived case information.
- Citation
- [2019] KEHC 11204 (KLR)
- Parties
- Applicant: Mohamed Ume Ado; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 448 of 2017
- Procedural Posture
- Criminal Revision / Ruling on Application for Review of Sentence
- Outcome
- application dismissed
- Judges
- LK Kimaru
- Legal Topics
- Manslaughter, Sentencing, Remand Custody, Sentence Review
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mohamed Ume Ado
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Review of Sentence
Legal Issues
- 1 Whether the trial court failed to take into account the period the applicant spent in remand custody before sentencing.
- 2 Whether the High Court has jurisdiction to review a sentence imposed by a court of concurrent jurisdiction.
Ratio Decidendi
The court found that the trial judge had expressly considered the period the applicant spent in remand custody before sentencing, as evidenced by the sentencing notes. Therefore, the applicant's claim that this period was not considered was factually incorrect. Furthermore, the court questioned its own jurisdiction to review a sentence imposed by a court of concurrent jurisdiction, but held that even if it had such jurisdiction, the sentence imposed was appropriate given the circumstances of the case. Consequently, the application for review of sentence was dismissed for lack of merit.
Court Disposition
application dismissed
Orders
- The application for review of sentence is dismissed.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
CRIMINAL REVISION NO.448 0F 2017
MOHAMED UME ADO...............................................................................APPLICANT
VERSUS
REPUBLIC...............................................................................................RESPONDENT
RULING
The Applicant, Mohamed Ume Ado was convicted of the offence of manslaughtercontrary to Section 202 as read with Section 205 of the Penal Code. He was sentenced to serve six (6) years imprisonment on 29th September 2016 by R.A. Lagat – Korir J. In her sentencing notes, the Learned Judge had this to say:
“I have considered the mitigation. I have also considered the circumstances of the offence. The accused and deceased were leaving together as a young couple. I take it from the evidence tendered in the trial, that they were lovers. On the fateful day, they fought in the corridor of the lodge and continued their fight in the room. I did not find any aggravating circumstances. I have also considered that the accused have been custody for close to four years now. While loss of life is not to be taken lightly, I do not consider a lengthy custodial sentence appropriate in the circumstances of this case. The accused shall serve six years imprisonment.”
The Applicant has filed the present application seeking to have the court take into account the period that he was in remand custody prior to his conviction. He reiterated the same prayer in the oral submission that he made before the court. This court ordered for a probation report to be prepared before the hearing of the application. The probation report clearly indicates that the deceased’s family has not been reconciled with the fact that they lost their daughter. The Applicant’s family has made no effort to make peace with the deceased’s family. The Applicant’s complaint to the effect that the trial Judge did not take into account the period that he was in remand custody before sentencing him is not the correct position. From the above quote, it is clear that the trial Judge did in fact take into consideration that period of pre-conviction custody.
It is doubtful whether this court has jurisdiction to review a sentence of a court of concurrent jurisdiction. Nevertheless, in the circumstance of this case, even on its merit, the custodial sentence meted on the Applicant fitted the crime. The application for review of sentence lacks merit and is hereby dismissed. It is so ordered.
DATED AT NAIROBI THIS 26TH DAY OF FEBRUARY 2019
L. KIMARU
JUDGE