[2022] KEHC 2504 (KLR)
The High Court found that the trial court had expressly considered the period the applicant spent in custody prior to sentencing, as evidenced by the sentencing remarks. Since the issue was already addressed by the trial judge, the High Court lacked jurisdiction to reconsider the same matter. The application for...
Source-derived case information.
- Citation
- [2022] KEHC 2504 (KLR)
- Parties
- Applicant: Wilson Mwangi Githinji; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application E219 of 2021
- Procedural Posture
- Criminal Miscellaneous Application / Ruling on Application for Sentence Revision
- Outcome
- application dismissed
- Judges
- DO Ogembo
- Legal Topics
- Sentence Revision, Remand Custody Credit, Jurisdiction of High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wilson Mwangi Githinji
Applicant
Republic
Respondent
Procedural Posture
Criminal Miscellaneous Application / Ruling on Application for Sentence Revision
Legal Issues
- 1 Whether the period spent in remand custody by the applicant was considered in the sentence imposed by the trial court.
- 2 Whether the High Court has jurisdiction to revise a sentence on a matter already considered by a court of concurrent jurisdiction.
Ratio Decidendi
The High Court found that the trial court had expressly considered the period the applicant spent in custody prior to sentencing, as evidenced by the sentencing remarks. Since the issue was already addressed by the trial judge, the High Court lacked jurisdiction to reconsider the same matter. The application for sentence revision was therefore dismissed for lack of merit.
Court Disposition
application dismissed
Orders
- The application filed on 28.7.2021 is dismissed wholly.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CRIMINALMISCELLANEOUS APPLICATIONCASEE219 OF 2021
WILSON MWANGI GITHINJI.......................................................APPLICANT
VERSUS
REPUBLIC.....................................................................................RESPONDENT
RULING
WILSON MWANGI GITHINJI, the applicant herein, has moved this court by way of a chamber summons application (undated) filed herein on 28. 7.2021, seeking primarily that this court do revise his sentence so as to give account to the period he spent in custody while awaiting the determination of his trial. The application is brought under section 333(2) of the Criminal Procedure Code.
In the oral submissions in court, the applicant submitted that he had been in custody for 5 years and 3 months, a period that had not been considered in the sentence.
Responding to the application, Ms. Ndombi for the state, submitted that the applicant had appealed to the Court of Appeal and out to pursue the issue of sentence at the superior court.
I have considered this application and the submissions made by the 2 sides. I have also considered the record of the proceedings before the trial court. The application of the applicant is on grounds that the period he spent while in remand custody was not accounted for in the sentence meted out by the court.
I have noted that prior to being sentenced, the applicant, was on 20. 2.2018 accorded the opportunity to mitigate. And the in the mitigation, the applicant raised the issue that he had been in custody for about 4 years and the court was urged to take this into account. And indeed on the ruling on sentence of the court on 7. 3.2018, the court clearly stated that it had taken into account the mitigation of the accused. The court went on to specifically state:
“This sentence has been determined after taking into account that Wilson Mwangi Githinji has stayed in prison custody during the pendency of this trial.”
The issue raised by the applicant in this application was clearly considered by the trial Judge. This court has no jurisdiction to reconsider the same issue already considered by a Judge of concurrent jurisdiction (See Samwel K. Macharia & Another Versus KCB & others, App No. 2/2011). For this reason, I find the application of the applicant filed herein on 28. 7.2021 totally lacking in merit. I dismiss the same wholly.
D. O. OGEMBO
JUDGE
8. 2.2022.
Court:
Ruling read out in open (on-line) in presence of the applicant (Kamiti Medium) and Ms. Akunja for the state.
D. O. OGEMBO
JUDGE
8. 2.2022.