[2021] KEHC 5201 (KLR)
The court found that the sentencing judge had already taken into account the period the applicant spent in custody prior to sentencing, as evidenced by the sentencing record. Therefore, the court would effectively be sitting as an appellate court over the same issue if it were to grant the application. As such, the...
Source-derived case information.
- Citation
- [2021] KEHC 5201 (KLR)
- Parties
- Applicant: Stephen Kitonga Mulwa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 31 of 2020
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Sentence Review Application
- Outcome
- application dismissed
- Judges
- HK Chemitei
- Legal Topics
- Sentencing Review, Pre Sentence Custody, Murder, Application of Section 333 2 Cpc
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Kitonga Mulwa
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Sentence Review Application
Legal Issues
- 1 Whether the applicant is entitled to have the period spent in pre-sentence custody considered under Section 333(2) of the Criminal Procedure Code.
- 2 Whether the sentencing court had already considered the pre-sentence custody period.
Ratio Decidendi
The court found that the sentencing judge had already taken into account the period the applicant spent in custody prior to sentencing, as evidenced by the sentencing record. Therefore, the court would effectively be sitting as an appellate court over the same issue if it were to grant the application. As such, the application lacked merit and was dismissed.
Court Disposition
application dismissed
Orders
- The application dated 6th February 2021 is dismissed.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
MISC. CRIMINAL APPLICATION NO. 31 OF 2020
STEPHEN KITONGA MULWA...............APPLICANT
VERSUS
REPUBLIC..........................................RESPONDENT
RULING
1. The applicant was charged with the offence of murder and was convicted and sentence to serve 15 years’ imprisonment on 17th April 2018. He did not prefer any appeal.
2. He has file the notice of motion dated 6th February 2021 praying that the court does under Section 333(2) of the Criminal Procedure code take into consideration the four years he had spent in prison while the matter was being heard.
3. The learned state counsel did not oppose the application but requested the court to take into consideration that a life was lost courtesy of the applicant’s action.
4. The court has perused the ruling of the court during sentencing and it is clear that my sister Odero J took into consideration the fact that the applicant had been in custody for close to 5 years. This court therefore would be sitting as an appellate court against the same.
5. In the premises the application is not meritorious and the same is dismissed.
DATED SIGNED AND DELIVERED VIA VIDEO LINK AT NAKURU THIS 15TH DAY OF JULY 2021.
H K CHEMITEI
JUDGE