[2023] KEHC 25012 (KLR)
The High Court found that the trial magistrate had expressly considered the time the applicant spent in custody prior to sentencing, as required by section 333(2) of the Criminal Procedure Code. The record reflected that the trial court stated it had taken into account the period spent in remand. There was no error,...
Source-derived case information.
- Citation
- [2023] KEHC 25012 (KLR)
- Parties
- Applicant: Peter Ombati; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kibera
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E034 of 2023
- Procedural Posture
- Criminal Revision / Ruling on Application for Sentence Revision
- Outcome
- application dismissed
- Judges
- DR Kavedza
- Legal Topics
- Sentence Revision, Time Spent in Custody, Sexual Offences, Defilement, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Ombati
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Sentence Revision
Legal Issues
- 1 Whether the trial court failed to consider the time the applicant spent in custody prior to sentencing as required by section 333(2) of the Criminal Procedure Code.
- 2 Whether there was any error or impropriety in the sentence imposed that warrants revision by the High Court.
Ratio Decidendi
The High Court found that the trial magistrate had expressly considered the time the applicant spent in custody prior to sentencing, as required by section 333(2) of the Criminal Procedure Code. The record reflected that the trial court stated it had taken into account the period spent in remand. There was no error, illegality, or impropriety in the sentence imposed, and the court had properly exercised its discretion in sentencing the applicant to twelve years' imprisonment for defilement, which was below the statutory minimum. As there was no miscarriage of justice or irregularity to correct, the application for revision was dismissed.
Court Disposition
application dismissed
Orders
- The application for revision of sentence is dismissed.
Full Case Text
Judgment text and source record
23 paragraphs
Ombati v Republic (Criminal Revision E034 of 2023) [2023] KEHC 25012 (KLR) (8 November 2023) (Ruling)
Neutral citation: [2023] KEHC 25012 (KLR)
Republic of Kenya
In the High Court at Kibera
Criminal Revision E034 of 2023
DR Kavedza, J
November 8, 2023
Between
Peter Ombati
Applicant
and
Republic
Respondent
Ruling
1. The applicant, Peter Ombati, has filed a chamber summons application (undated) under certificate of urgency supported by his affidavit seeking revision of his sentence. He prays for orders, inter alia, that the court reduces his sentence upon considering the time he had spent in custody prior to sentencing.
2. The applicant was charged, convicted and sentenced to twelve (12) years imprisonment for the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act.
3. Firstly, I note that the instant application is premised on the provisions of 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 providing 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.”
4. Further, 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.”
5. This court can only intervene to regularize the record to reflect the actual intention of section 333 (2) of theCPC and to avoid any miscarriage of justice. It is however apparent from the record that the trial magistrate considered the time the applicant spent in custody prior to passing the sentence. The trial court’s statement that it had considered the time spent in remand was sufficient and therefore, there was no error or impropriety to be regularized by this court.
6. Despite the statutory sentence under 8(3) of the Sexual Offences Act being twenty (20) years imprisonment, the applicant was sentenced to serve twelve (12) years imprisonment after the court considered the circumstances of the case, and properly exercised its discretion.
7. The upshot of the above is that the trial court took into account time spent in custody. There was no misdirection on the part of the court. Therefore, the application fails and is accordingly dismissed.
8. It is so ordered.
RULING DATED AND DELIVERED VIRTUALLY THIS 8THDAY OF NOVEMBER 2023. ___________________D. KAVEDZAJUDGEIn the presence of:Ms Akunja for the RespondentApplicant present (VTC)Joy C/A