[2025] KEHC 17119 (KLR)
The court found that although the applicant's conduct and prior convictions did not warrant a reduction or conversion of his custodial sentence, the period he spent in custody prior to sentencing had not been considered by the trial court. In accordance with section 333(2) of the Criminal Procedure Code, the court...
Source-derived case information.
- Citation
- [2025] KEHC 17119 (KLR)
- Parties
- Applicant: David Wangai Ndungu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E210 of 2024
- Procedural Posture
- Criminal Revision / Ruling on Application for Sentence Review
- Outcome
- Application partially allowed.
- Judges
- HI Ong'udi
- Legal Topics
- Sentencing Principles, Pre Sentence Custody, Threats to Kill, Non Custodial Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Wangai Ndungu
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Sentence Review
Legal Issues
- 1 Whether the period spent in custody prior to sentencing should be considered in computing the applicant's sentence.
- 2 Whether the applicant's sentence should be reduced or converted to a non-custodial sentence.
Ratio Decidendi
The court found that although the applicant's conduct and prior convictions did not warrant a reduction or conversion of his custodial sentence, the period he spent in custody prior to sentencing had not been considered by the trial court. In accordance with section 333(2) of the Criminal Procedure Code, the court ordered that the eight-year sentence should run from the date the applicant first appeared in court, thereby accounting for the pre-sentence custody period. The substantive sentence was otherwise upheld due to the applicant's criminal history and negative pre-sentence report.
Court Disposition
Application partially allowed.
Orders
- The eight-year sentence shall run from 1st March, 2021, the date the applicant first appeared in court.
- No reduction or conversion of the custodial sentence is granted.
Full Case Text
Judgment text and source record
25 paragraphs
Ndungu v Republic (Criminal Revision E210 of 2024) [2025] KEHC 17119 (KLR) (13 February 2025) (Ruling)
Neutral citation: [2025] KEHC 17119 (KLR)
Republic of Kenya
In the High Court at Nakuru
Criminal Revision E210 of 2024
HI Ong'udi, J
February 13, 2025
Between
David Wangai Ndungu
Applicant
and
Republic
Respondent
(From original sentence of Hon. R. Ombata – Senior Resident Magistrate in Criminal Case No E790 of 2021 of the Chief Magistrate’s court at Nakuru delivered on 23rd September, 2021)
Ruling
1. The Applicant David Wangai Ndungu was charged and convicted of the offence of threatening to kill contrary to section 223(1) of the Penal Code. He first appeared in court on 21st March, 2021. He was later convicted on his own plea of guilty on 11th August, 2021 and was sentenced to eight (8) years imprisonment on 23rd September, 2021.
2. He filed this undated notice of motion seeking the following orders:a.Reduction of the eight (8) years sentenceb.Conversion of eight (8) years sentence into a non-custodial sentence.c.Any other appropriate relief.
3. During the hearing, the applicant only prayed for consideration of the period he had been in custody before sentence which to him was eight (8) months.
4. M/s Okok Counsel for the respondent opposed the application. She urged that in sentencing the trial court considered the fact that the applicant had been convicted of the offence of grievous harm contrary to section 234 of the penal code and sentenced to two (2) years imprisonment. Further that the pre-sentencing report showed that he was a threat to the society.
5. Counsel conceded to the fact that the period the applicant was in custody prior to the sentence was never considered.
6. From the facts on record the complainant is the father to the applicant. In the previous conviction the complainant was the applicant’s elder brother. I have had a chance to look at the pre-sentence report. It shows that the applicant is a nuisance to the community. He is always drinking alcohol and steals to buy the drinks. In fact, it was recommended that the applicant be subjected to rehabilitation and proper counselling.
7. I note that besides the threats the applicant was armed with a knife though he did not cause any physical injury to the complainant – his father. He has been in prison since 2021. The applicant should learn to show his parents respect whether drunk of sober.
8. In view of his conduct the court declines to interfere with the sentence. I however order that the eight (8) year sentence runs from 1st March, 2021 when the applicant first appeared in court.
9. Orders accordingly
DELIVERED VIRTUALLY, DATED AND SIGNED THIS 13THDAY OF FEBRUARY, 2025 IN OPEN COURT AT NAKURU.H. I. ONG’UDIJUDGE