[2020] KEHC 4554 (KLR)
The trial court failed to specifically and adequately consider the two years the applicant had spent in custody during her trial, as required by the proviso to Section 333(2) of the Criminal Procedure Code. This omission constituted an error in sentencing. The High Court, upon revision, found it just to set aside...
Source-derived case information.
- Citation
- [2020] KEHC 4554 (KLR)
- Parties
- Applicant: Peris Nyambura Waitu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nanyuki
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 97 of 2020
- Procedural Posture
- Criminal Revision / Order on Revision
- Outcome
- Sentence revised; original sentence set aside and substituted with six months imprisonment effective from 30/04/2020.
- Legal Topics
- Sentencing Principles, False Pretences, Mitigation, Pre Sentence Custody, Criminal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peris Nyambura Waitu
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Order on Revision
Legal Issues
- 1 Whether the trial court erred by failing to consider the period spent in custody during trial when sentencing the convict.
- 2 Whether the sentence imposed should be revised in light of Section 333 of the Criminal Procedure Code.
Ratio Decidendi
The trial court failed to specifically and adequately consider the two years the applicant had spent in custody during her trial, as required by the proviso to Section 333(2) of the Criminal Procedure Code. This omission constituted an error in sentencing. The High Court, upon revision, found it just to set aside the original sentence of two and a half years imprisonment and substitute it with a sentence of six months imprisonment, effective from the original sentencing date, thereby giving effect to the statutory requirement to consider pre-sentence custody and the applicant's mitigation as a first offender with dependents.
Court Disposition
Sentence revised; original sentence set aside and substituted with six months imprisonment effective from 30/04/2020.
Orders
- The sentence of two and a half years imprisonment imposed upon the convict is set aside.
- A sentence of six months imprisonment with effect from 30/04/2020 is substituted.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NANYUKI
CRIMINAL REVISION NO.97 OF 2020
PERIS NYAMBURA WAITU..............................APPLICANT
VERSUS
REPUBLIC........................................................RESPONDENT
(Revision of the Original conviction and Sentence in Nanyuki Criminal Case No.287of 2020 – NJERI THUKU - PM)
25. 06. 2020
Before Justice H P G Waweru
In Chambers
ORDER ON REVISION
1. Upon application herein by the convict, PERIS NYAMBURA WAITU, I have called for and examined the record of the trial court with regard to the sentence.
2. The convict was convicted after trial of obtaining money by false pretencescontrary to Section 313 of the Penal Code. On 30/04/2020 she was sentenced to serve 2½ years imprisonment. Her co-accused, DANIEL MWANGI KARANJA, was similarly convicted and sentenced. Another co-accused, WINNY WANJIKU KINYA (alias MARGARET WANJIRU KANINI) absconded the trial and is still at large, with warrant out for her arrest.
3. In mitigation the convict herein, through counsel, pointed out that she had been in custody for two (2) years during the trial. She was also a first offender who had children who solely depended on her.
4. Although the trial court stated that it had considered the convict’s mitigation, it did not specifically and particularly take into account, as it should have done, the period the convict had spent in custody during her trial, as required by the proviso to Section 333 of the Criminal Procedure Code, Cap 75.
5. In the circumstances, I shall alter the sentence of 2 ½ years imprisonment imposed upon the convict by taking into account the two (2) years she had spent in custody during her trial.
6. The sentence of 2 ½ years imprisonment is therefore set aside and in its place a sentence of six (6) months imprisonment with effect from 30/04/2020 substituted. It is so ordered.
Dated at Nanyuki this 25th day of June 2020.
H.P.G. WAWERU
JUDGE.
DEPUTY REGISTRAR
NANYUKI HIGH COURT