Ombati v Republic [2023] KEHC 25012 (KLR)

Ombati v Republic (Criminal Revision E034 of 2023) [2023] KEHC 25012 (KLR) (8 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25012 (KLR)

Republic of Kenya

In the High Court at Kibera

Criminal Revision E034 of 2023

DR Kavedza, J

November 8, 2023

Between

Peter Ombati

Applicant

and

Republic

Respondent

Ruling

1. The applicant, Peter Ombati, has filed a chamber summons application (undated) under certificate of urgency supported by his affidavit seeking revision of his sentence. He prays for orders, inter alia, that the court reduces his sentence upon considering the time he had spent in custody prior to sentencing.

2. The applicant was charged, convicted and sentenced to twelve (12) years imprisonment for the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act.

3. Firstly, I note that the instant application is premised on the provisions of section 333 (2) of the Criminal Procedure Code which invokes the revisionary jurisdiction of this court as donated by section 362 of the Criminal Procedure Code providing 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.”

4. Further, 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.”

5. This court can only intervene to regularize the record to reflect the actual intention of section 333 (2) of theCPC 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 prior to passing the sentence. 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.

6. Despite the statutory sentence under 8(3) of the Sexual Offences Act being twenty (20) years imprisonment, the applicant was sentenced to serve twelve (12) years imprisonment after the court considered the circumstances of the case, and properly exercised its discretion.

7. 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. Therefore, the application fails and is accordingly dismissed.

8. It is so ordered.

RULING DATED AND DELIVERED VIRTUALLY THIS 8THDAY OF NOVEMBER 2023. ___________________D. KAVEDZAJUDGEIn the presence of:Ms Akunja for the RespondentApplicant present (VTC)Joy C/A