MWK v Republic [2022] KEHC 11016 (KLR)

MWK v Republic (Criminal Revision E277 of 2021) [2022] KEHC 11016 (KLR) (7 June 2022) (Ruling)

Neutral citation: [2022] KEHC 11016 (KLR)

Republic of Kenya

In the High Court at Kiambu

Criminal Revision E277 of 2021

MM Kasango, J

June 7, 2022

Between

MWK

Applicant

and

Republic

Respondent

(Being a Criminal Revision Application from the Ruling on sentence of 2nd September, 2021 at Gatundu Chief Magistrate’s Court (Hon. L.M. Wachira, CM) in Criminal Case No. E001 of 2021)

Ruling

1. MWK (M) was Convicted before the Gatundu Chief Magistrate Court with the offence of neglecting a child contrary to section 127(1) as read with section 9 of the Children Act. M pleaded guilty and also confirmed the facts of the case were true.

2. M has filed an application seeking revision of her sentence.

3. Section 362 of the Criminal Procedure Code which affords this court power of revision provides:-“The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.”

4. The facts of the case presented by the prosecution were that M had left her 5 children under the care of her mother and her mother was admitted to hospital leaving the children to fend for themselves. The older child had to miss school to attend to the young children. Those children were being provided with food by neighbours.

5. The probation report revealed the M is known by the villagers and the administration to abuse alcohol. Consequently, she surrendered the care of her five children to her elderly mother. That probation reproduced what the children’s officer stated, thus:-“Children’s officer:He says he had convened a family conference and the accused person (M) was not remorseful and was using vulgar language to the neighbours and the area assistant Chief during the meeting”

6. While M’s Criminal was proceeding, one of her aunties undertook to take care of her children in whose care they remained up to the date she was sentenced.

7. The trial court sentenced M to serve 18 months imprisonment. The trial court did not in passing that sentence take into account the period M had been in custody pending the conclusion of her case. M was arrested on August 23, 2021. She was sentenced to serve 18 months imprisonment on September 2, 2021.

8. My consideration of the period of the sentence meted out by the trial court, I am unable to find any illegality calling upon this Court to exercise its revision power save that the trial court’s sentence will be calculated from August 23, 2021. That is in keeping with the provisions of section 333(2) of the Criminal Procedure Code which provides:-“Subject to the provisions of section 38 of the Penal Code (cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody (emphasis mine).”

Disposal 9. The application for revision of the trial court’s sentence is declined save that the order of this court is MWK’s sentence of 18 month’s imprisonment will be calculated to start from August 23, 2021.

10. Orders accordingly.

RULING DATED AND DELIVERED AT KIAMBU THIS 7TH DAY OF JUNE, 2022. MARY KASANGOJUDGECoram:Court Assistant : MouriceApplicant: MWK : - AbsentFor Respondent : -Mr. KasyokaRuling delivered virtually.MARY KASANGOJUDGE