Robert King’awi Samuel v Republic [2022] KEHC 2610 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CRIMINALREVISIONCASE123 OF 2019

ROBERT KING’AWI SAMUEL.....APPLICANT

VERSUS

REPUBLIC ....................................RESPONDENT

RULING

This matter now comes up for the application of the applicant ROBERT KINGAWI SAMWEL filed herein on 11. 4.2019. The same, brought under section 333(2) of the Criminal Procedure Code, seeks that his sentence be reviewed so as to give account to a period of 2 years that he spent in remand custody while awaiting the determination of his case.

The prosecution side opposed this application on grounds that the trial court had considered the said period spent in custody in the sentence.

Section 333(2) of the Criminal Procedure Code at the proviso declares that in apportioning the sentence, the court ought to consider the period that the subject has spent in remand custody while awaiting the determination of his case.

I have considered the application and the response of the state/Respondent. I have also considered the record of the proceedings from the lower court. Same confirms that the applicant took plea on a charge of sexual assault contrary to section 5(1)(9 1(2) of the sexual offences Act, No. 3 of 2006 on 19. 7.2016. he was convicted and sentenced on 27. 2.2018.

Prior to being sentenced the court accorded the applicant the opportunity to mitigate. The court also called for, obtained and considered the probation officer’s report. And in the sentence proceedings of 27. 2.2018, the court clearly noted that it had taken into account the mitigation of the applicant, the probation report, the sentence provided for in law and the fact that the applicant had been in custody.

The court further notes that the sentence provided for in law for this offence is, not less than 10 years, but which may be enhanced to imprisonment for life. The applicant was sentenced to a legal sentence of 10 years imprisonment.

The trial court, having taken into account the period the applicant spent in remand custody in the sentence, the application of the applicant lacks my basis and is incompetent. I dismiss the same wholly.

D. O. OGEMBO

JUDGE

8. 2.2022.

Court:

Ruling read out on-line in presence of the applicant and Ms. Akunja for the state.

D. O. OGEMBO

JUDGE

8. 2.2022.