Mohamed & 2 others v Republic [2023] KEHC 24599 (KLR)

Mohamed & 2 others v Republic (Miscellaneous Criminal Application E015 of 2022) [2023] KEHC 24599 (KLR) (31 October 2023) (Ruling)

Neutral citation: [2023] KEHC 24599 (KLR)

Republic of Kenya

In the High Court at Garissa

Miscellaneous Criminal Application E015 of 2022

JN Onyiego, J

October 31, 2023

Between

Muhumed Idle Mohamed

1st Applicant

Siyat Idle Mohamed

2nd Applicant

Abdikheir Mohamud Alias Abey

3rd Applicant

and

Republic

Respondent

Ruling

1. The applicant herein was charged with the offence of murder contrary to Section 203 as read with Section 204 of the penal code.The particulars of the offence are that on the 28th day of January,2020 at Dashey 2 village in Fafi Location, Fafi Sub-county within Garissa County jointly murdered Isse Baraki Ali.

2. Upon returning a plea of not guilty, the matter proceeded to full trial. Consequently, the applicant was found guilty and sentenced to serve 10 years’ imprisonment. Subsequently, vide an undated chamber summons filed under certificate of urgency on 22-9-2023 the applicant sought revision of sentence on grounds that the Court did not consider the period spent in remand custody is taken into account when computing sentence pursuant to Section 333 (2) of the Criminal Procedure code.

3. I have considered the application herein and response thereof. The applicant has moved this court for review of sentence so as to accommodate the period spent in remand custody. It is trite that revisionary. orders hence apply under Article 165 (6) and (7) of the constitution only in respect to orders made or emanating from a sub-ordinate court to review the High court has supervisory powers over.

4. Further, under 362 of the Criminal procedure code, a high court has powers to call for or examine any criminal proceedings before any sub-ordinate court so as to satisfy itself as to the correctness, legality or propriety of any finding, order made or sentence passed. In the circumstances of this case, Section 362 of the Criminal Procedure Code is not relevant.

5. However, Section 364 (5) of the Criminal Procedure code provides that:When an appeal lies from a finding, sentence or order, and no appeal is brought, no proceeding by way of revision shall be entertained at the insistence of the party who could have appealed.

6. I am alive to the fact that under Section 333 (2) of the Criminal Procedure Code, a trial code ought to consider the period spent in remand custody before imposing sentence See Ahmed Aboulfathi Mohamed and Another -vs- Republic (2018) eKLR.

7. In the instant case, the Hon. Judge stated that each accused was to serve sentence from the date of Judgment. In my view the court by specifically stating when sentence was to start owing was aware of Section 333(2) although not exactly mention.

8. The above holding notwithstanding, the ground addressed herein can only qualify as a ground of appeal under Section 364 (5) of the Criminal procedure code and not for revision. for one to review the sentence herein I will be sitting as an appellate court over my colleague’s Judgment. Accordingly, I do not find merit in the application herein and the same is dismissed.

DATED, SIGNED AND DELIVERED IN OPEN COURT AT GARISSA THIS 31ST DAY OF OCTOBER, 2023. J. N. ONYIEGOJUDGE