Jackson Musyoka Kitaka v Republic [2019] KEHC 5822 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CRIMINAL REVISION NO. 6 OF 2019

JACKSON MUSYOKA KITAKA...................APPLICANT

VERSUS

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

RULING ON REVISION

1. By an amended notice of motion application filed on 27th March, 2019, the Applicant sought to move the court to revise the order made on the 22. 11. 18 sentencing him to 20 years imprisonment for count 2 and 3 which was to run concurrently with an order that his sentence do run from the date of sentence. The application sought that the sentence should run concurrently and also sought for orders that a blanket order be issued in favour of a co-accused who is at Kamiti Maximum Prison. The application was brought under Section 333(1) of the Criminal Procedure Code and Article 51(1) of the Constitution. The State did not oppose his application for Revision.

2. The issue for determination is whether the court may grant the orders sought.

3. The operative section of the law in this regard is Sections 333 (2) of the Criminal Procedure Code that states:

“(2) Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.

Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.”

4. In the application, the Applicant indicated that he had been in custody ever since and has sought that the same be considered in the sentence. The prosecution has conceded to his request.

5. It is the considered opinion of the court having had due regard to Section 333 (2) of the Criminal Procedure Code that the application is partially meritorious.

6. Accordingly, this court finds that the computation of twenty (20) years that the applicant was sentenced to shall run from the date when the Applicant was arrested namely 27th July 2005 as he remained in custody during the entire period of his trial. The order was that he serves the sentence concurrently. Therefore prayer 5 has no merit. Similarly prayers 2, 3 and 5 are dismissed as they relate to persons not party to the application herein.

It is so ordered.

Dated, Signed and Delivered atMachakosthis 10thday of July, 2019.

D.K. KEMEI

JUDGE