Mwabili v Republic [2022] KEHC 16235 (KLR)

Mwabili v Republic (Criminal Revision E052 of 2022) [2022] KEHC 16235 (KLR) (6 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16235 (KLR)

Republic of Kenya

In the High Court at Voi

Criminal Revision E052 of 2022

JN Onyiego, J

December 6, 2022

Between

Donati Msengeti Mwabili

Applicant

and

Republic

Prosecution

((From original conviction and sentence in Criminal Case No. 854 of 2019 of the Chief Magistrate’s Court at Voi))

Ruling

1. The applicant herein was arraigned before Wundanyi Law courts on June 28, 2019 facing the offence of manslaughter contrary to section 202 of the penal code. Particulars were that on June 4, 2019 at Kishushe Sub-Location in Wundanyi Sub-County Taita Taveta County unlawfully killed John Mwachofi

2. The Applicant having pleaded not guilty, the matter was scheduled for hearing. Later the file was transferred to Voi law courts where the plea was on September 25, 2019 read afresh and the applicant pleaded guilty. He was convicted on his own guilty and sentenced to 5 years imprisonment on October 9, 2019. In sentencing, the court took into account the mitigation on record and the unfavourable probation report.

3. On April 6, 2022, he filed a chamber summons before this court seeking review of the sentence on grounds that the trial court did not take into account the period spent in remand custody. When the matter came for hearing, Mr. Sirima for the state conceded that indeed the court did not take into account the said period. I have perused the court record and the sentence meted out. It is true that the trial court did not take into account the period spent in remand custody as required under Section 333(2) of the CPC

4. Under Section 333(2) of the CPC and the judiciary sentencing policy, a trial court is obligated to take into consideration the period spent in remand custody by an accused person before pronouncing the appropriate sentence. See Ahmad Abolfathi Mohamed & another Cr. Appeal No. 135 of 2016[2018] eKLR and Michael Ntenge Kisina v Republic[2021] eKLR.

5. This court has been called upon to exercise its supervisory powers over a subordinate court pursuant to Article 165(6) & (7) of the constitution and section 362 and 364 of the CPC which bestows powers upon the high court to call for and examine the record of criminal proceedings of the lower court so as to satisfy itself as to the correctness, legality, propriety of any sentence passed or order made, and as to the regularity of any proceedings of such subordinate court.

6. In the circumstances of this case, the applicant spent about four months in remand custody which period was not taken into account when sentencing. This is a legal question which calls upon this court to interfere with the discretionary powers of sentencing by a trial court. In the circumstances, it is my finding that the application is merited and the same is allowed with orders that the four months period spent in remand custody shall be factored into when computing sentence hence the applicant shall serve four years and eight months.Right of appeal 14 days

DATED SIGNED AND DELIVERED IN OPEN COURT THIS 6TH DAY OF DECEMBER 2022. .......................J. N. ONYIEGOJUDGE2