[2023] KEHC 26522 (KLR)

Mukono & another v Republic (Criminal Revision E032 & E020 of 2023 (Consolidated)) [2023] KEHC 26522 (KLR) (8 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26522 (KLR)

Republic of Kenya

In the High Court at Kajiado

Criminal Revision E032 & E020 of 2023 (Consolidated)

DR Kavedza, J

December 8, 2023

(Being Review of Sentencing In Kajiado Cm.Cr.C No.964 Of 2015)

Between

Immaculate Wanjiru Mukono

1st Applicant

Lydia Wairimu Kiragu

2nd Applicant

and

Republic

Respondent

Ruling

1. A brief outline of the case is that the applicants, Immaculate Wanjiru Mukono and Lydia Wairimu Kiragu were jointly charged with another not before this court on two counts. In count one, they were charged with the offense of stealing contrary to section 268(1) as read with section 275 of the Penal Code. In count two, they was charged with the offence of being in possession of a firearm without a firearm certificate contrary to section 4(2) as read with section 4 (3) (b) of the Firearm Act cap 114 laws of Kenya.

2. The applicants were acquitted on the first count of stealing contrary to section 268(1) as read with section 275 of the Penal Code, but were convicted and sentenced to five (5) years imprisonment on the second count of being in possession of a firearm without a firearm certificate, contrary to section 4(2) as read with section 4 (3) (b) of the Firearm Act.

3. Being aggrieved by the sentences, they filed the instant application seeking a revision of their sentences as they contend that the sentences were harsh and excessive in the circumstances of the offence;

4. They prayed that the court reduces their sentence to time served or to grant a non-custodial sentence for the remainder of the term or a reasonable sentence reduction. They further prayed that this court considers the mitigating factors and review the sentence.

5. In support of their applications, the applicants filed submissions urging the court to take into account that they are first offenders who are remorseful and who have embraced prison reforms and rehabilitation programs. They further urged the court to consider that they have dependants who rely on them for social and financial support.

6. The application is not opposed by the State.

7. This court has carefully considered the submissions and arguments made by the applicants. It has also had the benefit of perusing the proceedings and the judgment of the trial court. The issue for determination by this court is whether the Applicants made a case for this court to review the sentence that was imposed on them.

8. It is trite law that this court will not interfere with the sentencing discretion of a trial court unless it is established that the said court overlooked some material facts or took into account some wrong material or acted on wrong principles of the law [see Bernard Kimani Gacheruvs Republic [2002] eKLR].

9. Further, section 333 (2) of the Criminal Procedure Code, which invokes the revisionary jurisdiction of this court as donated by section 362 of the Criminal Procedure Code provides as follows:“…The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.”

10. I have perused the ruling on sentencing and found no evidence that the trial court erroneously exercised its sentencing discretion. I therefore decline to interfere with the sentence meted out against the applicants.

11. It is however noteworthy that the 1st applicant was in remand custody from the date of arrest, June 21, 2015, to July 29, 2015 when she was released on bond (a total of 38 days in custody). The 2nd applicant on the other hand was in remand custody from June 21, 2015 to July 8, 2015 when she was released on bond (a total of 17 days in custody).

12. Section 333 (2) of the Criminal Procedure Code (Cap 75) Laws of Kenya provides that:“(2)Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.”

13. Further, the Judiciary Sentencing Policy Guidelines states as follows as regards the foregoing section:“The proviso to section 333 (2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody if the convicted person had been in custody during the trial. Failure to do so impacts on the overall period of detention which may result in an excessive punishment that is not proportional to the offence committed. In determining the period of imprisonment that should be served by an offender, the court must take into account the period in which the offender was held in custody during the trial.”

14. Based on the foregoing provisions, I direct that the period spent in custody be included in the computation.

15. In the end, the application is dismissed, save that the 38 days and 17 days in which the 1st and 2nd applicants respectively were in remand custody prior to being granted bond to be computed in their sentences.

It is so ordered.

RULING DATED AND DELIVERED THIS 8TH DAY OF DECEMBER 2023___________D. KAVEDZAJUDGEIn the presence of: