[2023] KEHC 25895 (KLR)
The High Court found that the trial magistrate had expressly considered the period the applicant spent in pre-trial custody, as evidenced by the sentencing remarks which noted that the sentence was pegged on the consideration that the accused stayed in remand for three years and six months. Consequently, there was...
Source-derived case information.
- Citation
- [2023] KEHC 25895 (KLR)
- Parties
- Applicant: Isaac Khakuli Peter; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kibera
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 37 of 2023
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Sentence
- Outcome
- application dismissed
- Judges
- DR Kavedza
- Legal Topics
- Sentencing Principles, Pre Trial Custody, Revision Jurisdiction, Sexual Offences, Defilement, Criminal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Isaac Khakuli Peter
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the trial court failed to take into account the period the applicant spent in pre-trial custody when passing sentence.
- 2 Whether the High Court should revise the sentence under section 333(2) of the Criminal Procedure Code.
Ratio Decidendi
The High Court found that the trial magistrate had expressly considered the period the applicant spent in pre-trial custody, as evidenced by the sentencing remarks which noted that the sentence was pegged on the consideration that the accused stayed in remand for three years and six months. Consequently, there was no misdirection or error in the sentencing process. The application for revision under section 333(2) of the Criminal Procedure Code therefore lacked merit, as the trial court had complied with the statutory requirement to account for pre-trial custody. The court declined to interfere with the sentence and dismissed the application.
Court Disposition
application dismissed
Orders
- The application for revision of sentence is dismissed.
Full Case Text
Judgment text and source record
23 paragraphs
Peter v Republic (Criminal Revision 37 of 2023) [2023] KEHC 25895 (KLR) (23 November 2023) (Ruling)
Neutral citation: [2023] KEHC 25895 (KLR)
Republic of Kenya
In the High Court at Kibera
Criminal Revision 37 of 2023
DR Kavedza, J
November 23, 2023
Between
Isaac Khakuli Peter
Applicant
and
Republic
Respondent
Ruling
1. The applicant was charged and convicted on three counts of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act. He was sentenced to serve ten (10) years imprisonment for each count. The sentences were to run concurrently.
2. The applicant has now filed a Chamber Summons application dated 9th May, 2023 seeking a revision of his sentence. He prays that the court takes into account the period he spent in pre-trial custody and revise his sentence.
3. The application is supported by an affidavit sworn by the applicant, Isaac Khakuli Peter. He avers that the sentence was too harsh and thus seeks leniency from the court.
4. While the application is premised on the provisions of section 333 (2) of the Criminal Procedure Code, it invokes the revisionary jurisdiction of this court which is donated by section 362 of the Criminal Procedure Code which reads 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.
5. 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.”
6. This court can only intervene to regularize the record to reflect the actual intention of Section 333 (2) of the CPC 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. The trial court stated, “The sentence is pegged on the consideration that the accused stayed in remand for three (3) years and six (6) months to date.”
7. The upshot of the above is that the trial court took into account the time the applicant spent in custody. There was no misdirection on the part of the court and thus the application fails.
8. It is so ordered.
RULING DATED AND DELIVERED VIRTUALLY THIS 23RD DAY OF NOVEMBER 2023. _______________D.KAVEDZAJUDGEIn the presence of:Ms.Kibathi for the State.Applicant absent (VTC).Joy, Naomi C/A.