Ngatia v Republic [2023] KEHC 25024 (KLR)

Ngatia v Republic (Criminal Revision E19 of 2023) [2023] KEHC 25024 (KLR) (8 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25024 (KLR)

Republic of Kenya

In the High Court at Kibera

Criminal Revision E19 of 2023

DR Kavedza, J

November 8, 2023

Between

Joseph Kamau Ngatia

Applicant

and

Republic

Respondent

Ruling

1. The applicant was charged and convicted for the offence of threatening to kill contrary to section 223 of the Penal Codein Kibera CM Criminal Case No. E059 of 2021. He was subsequently sentenced to serve three (3) years imprisonment.

2. The applicant has now filed a Notice of Motion application dated July 21, 2023 seeking a revision of his sentence. He prays that the court takes into account the period he spent in pre-trial custody and revise his sentence.

3. The application is supported by an affidavit sworn by the applicant, Joseph Kamau Ngatia. He avers that he is remorseful, a first-time offender and thus seeks leniency from the court.

4. While the application is premised on the provisions of section 333 (2) of the Criminal Procedure Code, it invokes the revisionary jurisdiction of this court which is donated by section 362 of the Criminal Procedure Code which reads as follows:“…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.

5. Section 333 (2) of the Criminal Procedure Code (cap 75) Laws of Kenya provides that:“(2)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.”

6. This court can only intervene to regularize the record to reflect the actual intention of section 333 (2) of the CPC and to avoid any miscarriage of justice. It is however apparent from the record that the trial magistrate considered the time the applicant spent in custody. The trial court’s statement that it had considered the time spent in remand was sufficient and therefore, there was no error or impropriety to be regularized by this court.

7. Furthermore, despite the statutory sentence under section 223 of the Penal Code being ten (10) years, the applicant was sentenced to three (3) years after the court properly exercised its discretion.

8. The upshot of the above is that the trial court took into account time spent in custody. There was no misdirection on the part of the court and thus the application fails.

9. For the avoidance of doubt, the period the applicant spent in custody from 4/1/2021 to 22/9/2023, being 1 year and 8 months, shall be included in the computation of his sentence by the Prisons Officers.

10. It is so ordered.

RULING DATED AND DELIVERED VIRTUALLY THIS 8TH DAY OF NOVEMBER 2023. _______________D.KAVEDZAJUDGEIn the presence of:Ms. Akunja for the State.Applicant present (VTC).Joy C/A.Kibera HCCREV No. E019 of 2023 Page 2 of 2