Benard v Republic [2022] KEHC 16222 (KLR)

Benard v Republic (Criminal Revision E294 of 2022) [2022] KEHC 16222 (KLR) (7 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16222 (KLR)

Republic of Kenya

In the High Court at Voi

Criminal Revision E294 of 2022

JN Onyiego, J

December 7, 2022

Between

Morris Musyoka Benard

Applicant

and

Republic

Respondent

(From original conviction and sentence in Criminal Case No. E091 of 2022 of the Principal Magistrate’s Court at Taveta)

Ruling

1. The applicant was arraigned before the Taveta Magistrate’s court on February 1, 2022 facing the charge of stealing contrary to section 268(1) as read with section 275 of the Penal code. Particulars were that on January 28, 2022 at around 1800hrs at Msheghesheni village Taveta Sub-County within Taita Taveta County stole one water pump (Make Koshin) valued at Kshs 35,000/= the property of Kevin Lesile. He was alternatively charged with handling stolen goods contrary to section 322(1) of the penal code.

2. Having returned a plea of not guilty, the matter proceeded to full trial. Consequently, the applicant was convicted of the main count and subsequently sentenced on June 27, 2022 to a fine of Kshs 50,000/= in default to serve 12 months imprisonment.

3. Later, the applicant approached this court on October 4, 2022 through a notice of motion application seeking revision of his sentence on grounds that the trial court did not take into account the period spent in remand custody. Mr Sirima for the state opposed the application arguing that the sentence of one year with an option of a fine is not excessive.

4. I have considered the application herein against the lower court record. I have further considered both parties’ submissions. It is not in dispute that the applicant took plea on February 1, 2022 and remained in custody till June 27, 2022 when he was sentenced. When sentencing the court took into account the mitigation on record and the unfavourable probation officer’s report which discouraged granting the applicant a non-custodial sentence. There is no doubt that the trial court did not consider the period spent in custody which is three (3) months.

5. Under section 333(2) of the CPC and the judiciary sentencing policy, a trial court is obligated to take into consideration the period spent in remand custody by an accused person before pronouncing the appropriate sentence. See Ahmad Abolfathi Mohamed & anotherCr Appeal No 135 of 2016(2018) e KLR and Michael Ntenge Kisina v Republic (2021) eKLR.

6. This court has been called upon to exercise its supervisory powers over a subordinate court pursuant to Article 165(6) & (7) of the constitution and section 362 and 364 of the CPC which bestows powers upon the high court to call for and examine the record of criminal proceedings of the lower court to satisfy itself as to the correctness, legality, propriety and sentence passed or order made, and regularity of the proceedings of such subordinate court.

7. In the circumstances, the application is allowed and the period of 3 months spent in custody while in remand shall be taken into account in computing sentence. Accordingly, the sentence of a fine of Kshs 50,000/= in default serve one (1) year imprisonment shall be substituted with a fine of Kshs 50,000/= in default serve a sentence of nine (9) months imprisonment.Right of appeal 14 days.

DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 7TH DECEMBER, 2022. J. N. ONYIEGOJUDGE