[2022] KEHC 13851 (KLR)

Ndeto v Republic (Criminal Revision E058 of 2021) [2022] KEHC 13851 (KLR) (Crim) (11 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13851 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Revision E058 of 2021

DO Ogembo, J

October 11, 2022

Between

Pius Ndeto

Applicant

and

Republic

Respondent

Ruling

1. The applicant, Pius Ndeto, filed this present application on March 30, 2022. This application is supported by an affidavit of the applicant in which he prays for revision of his sentence. He states that he was sentenced to serve 10 years imprisonment for the offence of defilement. And that he spent he spent 1 year in custody awaiting trial and a further 5 years after conviction. He has pleaded that he is a first offender and that he is a first offender and that he has undertaken several courses to improve his character including a training by the protestant church, theological education, leadership, discipline of mercy, and peer counselling skills amongst others.

2. He has urged for revision of the sentence to reflect period spent in custody and possible a non-custodial sentence.

3. In opposing the application, counsel for state has submitted that the applicant had been on cash bail during the trial. Counsel urged that this application be dismissed.

4. I have considered this application and the submissions of the 2 parties. This application is for revision of the lower court’s order on sentence. The court’s power of revision under section 362 of the Criminal Procedure Code require that the applicant proves the incorrectness, illegality or impropriety in the order of the lower court aggrieved of.

5. The ground raised by the applicant herein is that the trial court did not account for the period he spent in custody in the sentence. To determine this matter, I have considered the proceedings of the trial court. The applicant took plea for the charge of defilement contrary to section 8(1)(2) of the Sexual Offences Act, No 3 of 2006 on June 18, 2013. He was released on cash bail on May 6, 2014, 1 year later.

6. In the sentence proceedings of the court conducted on November 20, 2018, the court duly noted the mitigation of the applicant, before sentencing him to serve 10 years imprisonment. In the said sentence, the court did not give account of the period of 1 year that the applicant had spent in custody before being released on cash bail.

7. Section 333(2) of the Criminal Procedure Code declares that such period spent in custody while awaiting determination of the trial ought to be accounted for in the sentence. The trial court ought to have considered the period of 1 year spent in custody in the sentence.

8. I accordingly therefore find merit in the application of the applicant filed herein on March 30, 2022 and revise the sentence of the appellant. I order that the appellant shall be sentenced to serve 10 years’ imprisonment, less a period of 1 years that he spent in remand custody while awaiting determination of his case. The sentence shall run from the date of sentence on November 20, 2018. Orders accordingly.

D. O. OGEMBOJUDGE11TH OCTOBER 2022. Court:9. Ruling read out in court in the presence of the applicant (Nairobi West) and Ms. Oduor for the state.D. O. OGEMBOJUDGE11TH OCTOBER 2022. ‘O’FROM: HIGH COURT APPELLATE SIDETO: @G.K. NAIROBI WESTINFO: PHQ.11TH OCTOBER, 2022HCCR REVISION. NO. E058 OF 202210. HIGH COURT CRIMINAL REVISION NO. E058 OF 2022 ORIGINATING FROM THE CHIEF MAGISTRATE’S COURT AT MAKADARA CRIMINAL CASE NO. 2747 OF 2013. APPLICANT NWP/2357/2018/LS PIUS NDETO THE APPELLANT SHALL BE SENTENCED TO SERVE 10 YEARS’ IMPRISONMENT, LESS A PERIOD OF 1 YEARS THAT HE SPENT IN REMAND CUSTODY WHILE AWAITING DETERMINATION OF HIS CASE. THE SENTENCE SHALL RUN FROM THE DATE OF SENTENCE ON 20. 11. 2018. ORDERS ACCORDINGLY.DEPUTY REGISTRAR