Khabwe v Republic [2022] KEHC 13723 (KLR)

Khabwe v Republic (Criminal Revision E018 of 2020) [2022] KEHC 13723 (KLR) (Crim) (6 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13723 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Revision E018 of 2020

JM Bwonwong'a, J

October 6, 2022

Between

Japhetha Omanga Khabwe

Accused

and

Republic

Prosecutor

(Being an application for revision of the sentence of the Hon. F. Mutuku, SRM, delivered on 25/01/2019 in the Chief Magistrate’s Court at Kibera (Nairobi) in Criminal Case No.5027 of 2015, Republic versus Japheth Omanga Khabwe)

Ruling

The case for the accused/applicant 1. The applicant under certificate of urgency moved this court for revision of his sentence of eight (8) years imprisonment following his conviction for the offence causing grievous Kenya harm contrary to section 234 of the Penal Code (cap 63) laws of Kenya.

2. In his undated notice of motion, the applicant has requested the court to consider the period he had been in pre-trial remand custody of three years and two months.

3. Additionally, the applicant has also supported his application with a six-paragraphs supporting affidavit, in which he has deposed to the following major matters. First, he is a first offender. He was in pre-trial custody for three years and two months. He is remorseful. He is a family man and he is the sole bread winner of his family. He is currently suffering from psychological and financial problems and has therefore urged the court to impose a non-custodial sentence.

4. The applicant was charged in court on November 30, 2015 and was convicted for grievous harm on January 25, 2019. During this period, he was in custody, which translates to three years two months.

The case for the respondent 5. The respondent has conceded the application.

Issues for determination 6. I have considered the application and the applicable law. As a result, I find that the trial court erred in law in failing to consider the pre-trial custody period, which it was mandatorily required to consider under section 333 (2) of the Criminal Procedure Code (cap 75) laws of Kenya.

7. In view of the foregoing finding, I am entitled to interfere with the sentencing discretion of the trial court.

8. It therefore follows that the applicant should have been sentenced to 8 years less 3 years and two months, which translates to four years (4) and two months; which sentence is to run from the date of conviction namely on January 25, 2019.

9. In the premises, the application succeeds as shown in the foregoing paragraph.

RULING SIGNED, DATED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 6TH DAY OF OCTOBER 2022. J M BWONWONG’AJUDGEIn the presence of-Mr. Kinyua: Court AssistantThe accused/applicant in personMs Edna Ntabo for the Respondent