Albert Esige Memba v Republic [2022] KEHC 2027 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CRIMINALREVISIONCASE51 OF 2019

ALBERT ESIGE MEMBA.................APPLICANT

VERSUS

REPUBLIC......................................RESPONDENT

RULING

This application of the applicant, ALBERT ESIGE MEMBA filed herein on 26. 2.2019, seeks for revision of the sentence. That the sentence be revised to account for the period of 2 years he spent in custody awaiting trial i.e from 10. 9.2015 to 8. 9.2017 be accounted for in the sentence.

The state has opposed this application on grounds that this application has already been determined in a similar cause. Counsel urged that this application be dismissed.

I have considered the submissions of both sides. Indeed section 333(2) of the Criminal Procedure Code declares that the period an accused person spends in custody awaiting determination of his case ought to be considered in the sentence.

I have considered the sentence proceedings of 8. 9.2017, It is clear that in the mitigation of the applicant, he pleaded that he had spent 2 years in custody. The court, in passing the sentence did not indicate whether or not it took into consideration this period. It ought to have done so.

In the circumstances, I find merit in the application of the applicant. I allow the same and revise the sentence of the trial court. The applicant shall serve an imprisonment term of 10 years’ imprisonment less the period of 2 years he remained in custody awaiting the determination of his trial. Orders accordingly.

D. O. OGEMBO

JUDGE

1. 3.2022.

Court:

Ruling read out in court (on-line) in presence of the applicant and Ms. Akunja for the state.

D. O. OGEMBO

JUDGE

1. 3.2022.

‘O’

FROM: HIGH COURT APPELLATE SIDE

TO: G.K. NAIROBI WEST G.K. PRISON

INFO: PHQ.

1ST MARCH, 2022

HCCR REV. NO. 51 OF 2019

HIGH COURT CRIMINAL REVISION NO. 51 OF 2019 ORIGINATING FROM THE CHIEF MAGISTRATE’S COURT AT KIBERA SEXUAL OFFENCES CASE NO. 46 OF 2015. APPLICANT’S ALBERT ESIGE MEMBA NWP/1518/07/LS THE APPLICANT SHALL SERVE AN IMPRISONMENT TERM OF 10 YEARS’ IMPRISONMENT LESS THE PERIOD OF 2 YEARS HE REMAINED IN CUSTODY AWAITING THE DETERMINATION OF HIS TRIAL. ORDERS ACCORDINGLY.

DEPUTY REGISTRAR