Otemba & 2 others v Republic [2023] KEHC 26340 (KLR)

Otemba & 2 others v Republic (Criminal Revision 65, 66 & 67 of 2023) [2023] KEHC 26340 (KLR) (6 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26340 (KLR)

Republic of Kenya

In the High Court at Kibera

Criminal Revision 65, 66 & 67 of 2023

DR Kavedza, J

December 6, 2023

Between

Dismas Mariba Otemba

1st Applicant

Maxwel Juma Alfred

2nd Applicant

Duncan Simba Nyamungo

3rd Applicant

and

Republic

Respondent

Ruling

1. The applicants herein have each filed separate applications seeking revision of the sentences they are currently serving. This ruling is therefore in respect of their applications in which they seek similar orders; that this court, while computing their sentences, to take into account the period they spent in remand during the trial.

2. The applicants were jointly charged and convicted on three separate counts. The were subsequently sentenced as follows. On count I, the applicants were each sentenced to serve 5 years imprisonment for the offence of preparation to commit a felony contrary to section 308(2) of the Penal Code. On count VIII, the 2nd applicant was sentenced to serve 7 years imprisonment for the offence of being in possession of a firearm contrary to section 4(2)(a) as read with section 4(3)(a) of the Firearms Act. Lastly, on count IX, the 1st applicant was sentenced to serve 7 years imprisonment for the offence of being in possession of an imitation of a firearm contrary to section 34(1) of the Firearm Act.

3. Firstly, I note that the instant applications are 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 the CPC and to avoid any miscarriage of justice. It is however apparent from the record that the trial magistrate considered the time the applicants spent in custody prior to passing the sentences. 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. The upshot of the above is that the trial court took into account the time the applicants spent in custody. There was no misdirection on the part of the court. Therefore, the application fails save that the applicants’ sentences shall run concurrently.

7. It is so ordered.

RULING DATED AND DELIVERED VIRTUALLY THIS 6TH DAY OF DECEMBER 2023. ..........................D. KAVEDZAJUDGEIn the presence of:Mr. Kiragu for the State.Applicants present of the platform.Joy/ Naomi Court Assistants