Meshack Kabole v Republic [2022] KEHC 2577 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CRIMINALREVISIONCASE208 OF 2019

MESHACK KABOLE...................................................................APPLICANT

VERSUS

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

RULING

The applicant, MESHACK KABOLE has moved this court by an application filed on 19. 7.2019. The application, which does not show which statutory provision it is brought under seeks that this court do review the applicant’s sentence. In the affidavit in support of the application, the applicant has deponed that the was sentenced to serve a term of 5 years imprisonment, but that in the said sentence, the trial court did not take into account the period of 1 year that he had spent in custody awaiting determination of his case.

The prosecution in response to the application stated that if indeed the period spent in custody was not considered in the sentence, then, they would not oppose the application. Otherwise, that the sentence was proper.

This application is clearly brought under section 333(2) of the Criminal Procedure Code. The proviso to that section states;

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

I have considered that the applicant faced upto 3 counts of grievous harm contrary to section 234 of the Penal Code. The sentence provided under the said proviso (section) is imprisonment for life. The said section states:

“Any person who unlawfully does grievous harm to another is guilty of a felony and is liable to imprisonment for life.”

The above provision gives the sentence for the offences the applicant was convicted of as upto life sentence. The court on the other hand, in its own judicial discretion sentenced the applicant to serve 5 years imprisonment on the 3 counts, to run concurrently. This, to say the least, was a lenient sentence.

For avoidance of doubt however, the said sentence was lawful. And as seen above, the legal sentence for this offence does not provide for an alternative of fine.

The record of proceedings of the lower court show that the applicant was first arraigned in court on 23. 4.2019 whereupon he pleaded guilty to all the 4 counts. He was thereafter sentenced on 9. 5.2019. He was therefore in custody for a period of 16 days. The statement of the applicant of paragraph 3 of the affidavits in support of this application that the applicant spent a period of 1 year in custody awaiting trial is untruthful and grossly misleading.

Section 333(2) of the Criminal Procedure Act, demands that period taken in remand custody be factored in the sentence. I accordingly allow the application of the applicant accordingly. The applicant to serve a term of 5 years imprisonment on counts I, II and III from the date he was arraigned in court i.e 23. 4.2019. The same to run concurrently. Orders accordingly.

D. O. OGEMBO

JUDGE

8. 2.2022.

Court:

RULING READ OUT ON-LINE IN PRESENCE OF THE APPLICANT, (NAIROBI WEST PRISON) AND MS. KIBATHI FOR MS. AKUNJA FOR THE RESPONDENT.

D. O. OGEMBO

JUDGE

8. 2.2022.