Roba v Republic [2023] KEHC 24606 (KLR)

Roba v Republic (Criminal Revision E201 of 2023) [2023] KEHC 24606 (KLR) (31 October 2023) (Ruling)

Neutral citation: [2023] KEHC 24606 (KLR)

Republic of Kenya

In the High Court at Garissa

Criminal Revision E201 of 2023

JN Onyiego, J

October 31, 2023

Between

Esmail Malata Roba

Applicant

and

Republic

Respondent

(High court vide Criminal appeal number 28 of 2018 Criminal Appeal 28 of 2018 )

Ruling

1. The applicant was charged with three counts before Garissa Chief Magistrate’s court in Criminal Case No. 834 of 2016. Counts one and two he was charged with robbery with violence contrary to section 296 (2) of the Penal code. Count three he was charged with rape contrary to section 3 (1) (b) as read together with section 3(3) of the Sexual Offences Act No 3 of 2006.

2. Upon conducting full trial, the court convicted the applicant and sentenced him to Life imprisonment for each count. Aggrieved by the said conviction and sentence, the appellant appealed to the High court vide Criminal appeal number 28 of 2018. Upon canvassing the appeal, Kariuki Judge on April 16, 2020 dismissed the appeal on conviction and substituted the sentence of Life imprisonment to 15 years’ imprisonment in respect of Count 1, and 10 years for each of the counts 2 and 3.

3. Undeterred, the applicant moved to this court vide a notice of motion filed on September 28, 2023, seeking revision of the Sentence by taking into account the period spent in remand custody when computing sentence.

4. On his part, the respondent did not oppose the application.

5. I have considered the application herein and the response herein. The gist of the application herein is that the trial court did not consider the period spent in remand custody when computing sentence. Section 333 (2) of the Criminal Procedure code provides as follows:(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. In the case of Abolfathi Mohamed & another v Republic [2018] eKLR the Court of Appeal decided that the period spent in remand custody by an accused person should be taken into account when imposing sentence pursuant to section 333(2) of the Criminal Procedure Code.

7. Similar position was held in Boniface Mugo Maingi v Republic [2021] eKLR. However, the circumstances in this case are different, the applicants appeal against sentence was duly considered by the High court. Failure by the High court to consider the period spent in remand custody ought to be considered as a ground of appeal before the Court of Appeal under section 364 (5) of the Criminal Procedure Code.

8. In a nut shell it is my finding that, I do not have jurisdiction to determine the application as that will amount to technically acting as an appellate court on a matter determined by a court of concurrent jurisdiction.Accordingly, the application is devoid of merit hence dismissed.Right of appeal 14 days.

DATED, SIGNED AND DELIVERED VIRTUALLY AT GARISSA THIS 31ST DAY OF OCTOBER, 2023J. N. ONYIEGOJUDGE