Kamau v Republic [2022] KEHC 9889 (KLR)

Kamau v Republic (Miscellaneous Criminal Appeal E255 of 2021) [2022] KEHC 9889 (KLR) (Crim) (12 July 2022) (Order)

Neutral citation: [2022] KEHC 9889 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Miscellaneous Criminal Appeal E255 of 2021

JM Bwonwong'a, J

July 12, 2022

Between

Evans Kinyanjui Kamau

Applicant

and

Republic

Respondent

(Being an application for revision of the order of Hon. A.R. Kithinji, SPM, dated 16/09/2019 in Makadara Chief Magistrate’s Court in Criminal Case No. 2305 of 2021, Republic v Evans Kinyanjui Kamau)

Order

The case for the applicant 1. This is an application for revision of the order of the lower court.

2. The lower court file was forwarded to this court after it was called by this court for revision purposes following an application by the applicant.

3. The applicant in his supporting affidavit has deposed that this court considers the period the applicant was in pre-trial remand custody of three years.

4. He has also deposed that section 333 (2) of the Criminal Procedure Code (Cap 75) Laws of Kenya, require the court to take into account the pre-trial remand custody period during sentencing; which was not done.

The case for the respondent 5. In his oral submissions in this court, counsel for the respondent submitted that the trial court actually took into account the period the applicant was in pre-trial remand custody.He therefore urged the court to dismiss the application.

Findings of the court 6. I have perused the proceedings of the record of the lower court. The applicant was convicted and sentenced to ten years imprisonment in respect of the offence of robbery contrary to section 296 (2) of the Penal Code (Cap 63) Laws of Kenya; although the sentence prescribed by the law was the death penalty.

7. The circumstances of the offence as found by the lower court were that the applicant was among six robbers who attacked the complainant and stole his phone; which was no recovered. The robbers were armed with a pistol and metal bars. And in the course of committing the robbery they inflicted a wound in the head of the complainant.

8. In sentencing the applicant, the lower court considered the report of the probation officer. It also considered the time the applicant had been in custody. It then proceeded to sentence him to ten years imprisonment.

9. It is clear from the record of the proceedings of the lower court that the period the applicant was in pre-trial remand custody was considered by the lower court. The contention of the applicant to the contrary is not correct.

10. Furthermore, I find no basis to interfere with the sentence imposed by the lower court.

11. In the premises, the application fails and is hereby dismissed for lacking in merit.

RULING SIGNED, DATED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 12TH DAY OF JULY 2022. J M BWONWONG’AJUDGEIn the presence of-Mr. Kinyua: Court AssistantThe applicant in person presentMr. Otieno for the Respondent