Dido v Republic [2022] KEHC 16227 (KLR)

Dido v Republic (Criminal Revision E269 of 2022) [2022] KEHC 16227 (KLR) (7 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16227 (KLR)

Republic of Kenya

In the High Court at Voi

Criminal Revision E269 of 2022

JN Onyiego, J

December 7, 2022

Between

Mammud Gababa Dido

Applicant

and

Republic

Respondent

(From original conviction and sentence in Criminal Case No. 506 of 2018 of the Principal Magistrate’s Court at Taveta)

Ruling

1. The applicant was arraigned before the Principal Magistrate’s Court Taveta Law Court on 25. 9.2018 facing the charge of causing grievous harm contrary to section 234 of the Penal. Particulars are that on the 9. 9.2018 at around 1100hours at Moya Moya village in Taveta Sub-County within Taita Taveta County intentionally did grievous harm to Moses Lerungu Jumapili.

2. Having returned a plea of not guilty, the matter proceeded to full hearing. The court convicted and sentenced the applicant on 21. 2.20 to 5 years imprisonment. Subsequently, the applicant moved to this court on 23. 8.2022 vide a notice of motion seeking review of sentence on grounds that the trial court did not take into account the period spent in remand custody. The state did not oppose the application as Mr. Sirma prosecution counsel conceded that the court did not consider the period the Applicant had spent in remand. I have considered the lower court record, application herein and oral submissions by both parties. Under article 165 (6) and (7) of the Constitution, this court has supervisory powers to oversee subordinate courts, Tribunals and any person or body authority exercising quasi judicial function or authority. Equally, under section 362 and 364 of the CPC, the High Court has powers to call for and determine the record of any criminal proceedings so as to satisfy itself as to the correctness, legality, propriety of any sentence passed or order made, and regularity of proceedings of such subordinate court. I am alive to the fact that sentencing is at the discretion of the trial court and the High Court can only intervene if it is illegal, excessive or generally the trial court applied wrong principles or failed to apply correct principles in arriving at its determination.

3. In this case, there is evidence that the Applicant was released on bond on September 26, 2018 up to December 6, 2018 when it was cancelled. He therefore remained in custody from December 6, 2018 up to 21st February, 20 when he was sentenced to 5 years imprisonment. Under section 333(2) of the CPC, the trial court ought to have taken into consideration the period spent in remand custody making a total of 14 months and 20 days which should be considered in computing sentence. Accordingly, the application is allowed as prayed and the applicant shall serve the sentence imposed less fourteen (14) months and twenty (20) days.

DATED SIGNED AND DELIVERED IN OPEN COURT THIS 7TH DAY OF DECEMBER, 2022. …………………HON. J. ONYIEGOJUDGE