Kemboi v Republic [2022] KEHC 16285 (KLR)

Kemboi v Republic (Criminal Revision E114 of 2022) [2022] KEHC 16285 (KLR) (Crim) (5 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16285 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Revision E114 of 2022

JM Bwonwong'a, J

December 5, 2022

Between

Bernard Kimutai Kemboi

Applicant

and

Republic

Respondent

(Being a revision of the sentence imposed by Hon. S. Shitubi, CM, on 26/04/2022, in Nairobi CM’S Court in Criminal Case No. 284 of 2018 Bernard Kimutai Kemboi))

Judgment

1. The applicant has applied for revision of his sentences which were as follows. In count one he was sentenced to a fine of Shs 200,000/-in default to serve one-year imprisonment in respect of the offence of personation contrary to section 382 of the Penal Code (cap 63) Laws of Kenya, with the particulars being that with intent to defraud falsely presented himself as a chief inspector in the National Police Service of police.

2. In count 2 he was sentenced to two years imprisonment for the offence of obtaining by false pretence Shs 250, 000/- from Benjamin Koskei Tarlam, by falsely pretending that he was in a position to recruit him into the National Police Service contrary to section 313 of the Penal Code.

3. In count 3 he was sentenced to two years imprisonment for the offence of obtaining by false pretence Shs 150. 000/- from Alex Kiprotich Samong contrary to section 313 of the Penal Code, with the particulars being that with intent to defraud obtained shs 150,000/- from Alex Kiprotich Samong, by falsely pretending that he was in a position to recruit him into the National Police Service, a fact he knew to be false.

4. I have perused the record of the proceedings of the trial court, which I had called for revision in accordance with section 362 as read with section 364 of the Criminal Procedure Code(cap 75) Laws of Kenya.

5. The record shows that the applicant was arrested on 16/02/2018. Following his trial, the appellant was convicted and sentenced on April 26, 2022 as follows.Count 1 a fine shs 200,000/- in default to serve one year.Counts 2 and 3 he was sentenced two years imprisonment.The sentences were ordered to run concurrently.

6. He has now applied for revision of his sentence on the basis that the trial court did not take into account the period he was in pre-trial remand custody.

7. The appellant has submitted that he was in pre-trial custody for a period of two months.

8. In sentencing the appellant, the trial court considered the mitigation of the appellant. It also found that he was a first offender. It further found that the offence was rampart and common.

9. I find that the appellant was arrested on February 16, 2018. He was released on bail/bond on April 11, 2018; which translates to a period of about two months.

10. It is therefore clear that the trial court did not take into account the two months, when he was in pre-trial custody.

11. The trial court erred in law in failing to take into account the pre-trial custody period in sentencing the appellant. I am therefore entitled to interfere with the sentencing discretion of the trial court.

12. Consequently, the appellant will now serve two years less two months, which sentence will run from the date of conviction.

RULING SIGNED, DATED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 5TH OF DECEMBER 2022. J M BWONWONG’AJUDGEIn the presence of-Mr. Kinyua: Court AssistantThe applicant in personMr. Otieno for the respondent