[2024] KEHC 1882 (KLR)
The court found that the application for review of sentence lacked merit because the applicant's claim of having been in custody for 1 year and 9 months was false; records showed he was in custody only briefly before being released on bail, and delays in the case were due to his own failure to attend court....
Source-derived case information.
- Citation
- [2024] KEHC 1882 (KLR)
- Parties
- Applicant: Samwel Kibet Ngeno; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Makueni
- Jurisdiction
- Kenya
- Case Number
- Petition 5A of 2022
- Procedural Posture
- Constitutional Petition / Ruling on Application for Review of Sentence
- Outcome
- application dismissed
- Judges
- GMA Dulu
- Legal Topics
- Sentence Review, Revision Jurisdiction, False Pretences, Custodial Sentence, Bail and Custody, Application of Section 333
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samwel Kibet Ngeno
Applicant
Republic
Respondent
Procedural Posture
Constitutional Petition / Ruling on Application for Review of Sentence
Legal Issues
- 1 Whether the High Court should exercise its revisionary powers to review the sentence imposed by the Magistrate's Court.
- 2 Whether the period spent in custody by the applicant should be considered under Section 333(2) of the Criminal Procedure Code.
- 3 Whether the sentence had already been substantively determined on appeal.
Ratio Decidendi
The court found that the application for review of sentence lacked merit because the applicant's claim of having been in custody for 1 year and 9 months was false; records showed he was in custody only briefly before being released on bail, and delays in the case were due to his own failure to attend court. Therefore, Section 333(2) of the Criminal Procedure Code did not apply. Additionally, the sentence had already been substantively considered and determined on appeal in Makueni High Court Criminal Appeal No E100 of 2021. The trial court had been lenient in granting an option of a fine for an offence that statutorily required imprisonment. There was no legal basis for the High Court to...
Court Disposition
application dismissed
Orders
- The application for review of sentence is dismissed.
Full Case Text
Judgment text and source record
23 paragraphs
Ngeno v Republic (Petition 5A of 2022) [2024] KEHC 1882 (KLR) (28 February 2024) (Ruling)
Neutral citation: [2024] KEHC 1882 (KLR)
Republic of Kenya
In the High Court at Makueni
Petition 5A of 2022
GMA Dulu, J
February 28, 2024
Between
Samwel Kibet Ngeno
Petitioner
and
Republic
Respondent
Ruling
1. Though this matter is designated as a Constitutional Petition, it is actually a mere application for review of sentence.
2. It is an undated request for review of the sentence pronounced by the Magistrate on 28th September 2021, and is based on the following grounds:-1. That the applicant pleaded not guilty to the charges.2. That the applicant pleads with the court to allow his petition fully.3. That the applicant requests the sentence to run from the time he was arrested.
3. The application was canvassed through written submissions. In this regard, I have perused and considered the submissions filed by the applicant as well as the submissions filed by the Director of Public Prosecutions.
4. Having considered the issues raised in the application and the requests of the applicant, in my view this application lacks merit and is for dismissal, as there is no basis for this court exercising its revision powers under Section 362 of the Criminal Procedure Code (Cap.75).
5. The first reason is that the allegation by the applicant that he was held in custody for a duration of 1 year and 9 months is not true, which means that the applicant is bent on misleading the court. It is clear from the documents filed that he was in custody for only a short period and then released on bail, and the case delayed merely because of him failing to attend court. Thus he did not fall within the parameter of Section 333 (2) of the Criminal Procedure Code (Cap.75), that required the trial court to take into account the period he was in custody during sentencing.
6. The second reason why the application will not succeed, is that the sentence herein was substantively considered and determined in Makueni High Court Criminal Appeal No E100 of 2021 in a judgment delivered on 22nd September 2022.
7. I note also that the applicant was given an option of a fine while the statutory sentence was imprisonment. In my view therefore, the trial court was infact very lenient to him and the applicant should in those circumstances have counted himself lucky for being granted the option of a fine for an offence of obtaining money by false pretences under Section 313 of the Penal Code.
8. I thus find no merits in the application for review of sentence herein. I dismiss the application.
DATED, SIGNED AND DELIVERED THIS 28TH DAY OF FEBRUARY 2024 VIRTUALLY AT VOI IN OPEN COURT.GEORGE DULUJUDGEIn the presence of:-Alfred – Court AssistantApplicantMr. Kazungu for State