Wilson Mwangi Githinji v Republic [2022] KEHC 2504 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CRIMINALMISCELLANEOUS APPLICATIONCASEE219 OF 2021

WILSON MWANGI GITHINJI.......................................................APPLICANT

VERSUS

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

RULING

WILSON MWANGI GITHINJI, the applicant herein, has moved this court by way of a chamber summons application (undated) filed herein on 28. 7.2021, seeking primarily that this court do revise his sentence so as to give account to the period he spent in custody while awaiting the determination of his trial. The application is brought under section 333(2) of the Criminal Procedure Code.

In the oral submissions in court, the applicant submitted that he had been in custody for 5 years and 3 months, a period that had not been considered in the sentence.

Responding to the application, Ms. Ndombi for the state, submitted that the applicant had appealed to the Court of Appeal and out to pursue the issue of sentence at the superior court.

I have considered this application and the submissions made by the 2 sides. I have also considered the record of the proceedings before the trial court. The application of the applicant is on grounds that the period he spent while in remand custody was not accounted for in the sentence meted out by the court.

I have noted that prior to being sentenced, the applicant, was on 20. 2.2018 accorded the opportunity to mitigate. And the in the mitigation, the applicant raised the issue that he had been in custody for about 4 years and the court was urged to take this into account. And indeed on the ruling on sentence of the court on 7. 3.2018, the court clearly stated that it had taken into account the mitigation of the accused. The court went on to specifically state:

“This sentence has been determined after taking into account that Wilson Mwangi Githinji has stayed in prison custody during the pendency of this trial.”

The issue raised by the applicant in this application was clearly considered by the trial Judge. This court has no jurisdiction to reconsider the same issue already considered by a Judge of concurrent jurisdiction (See Samwel K. Macharia & Another Versus KCB & others, App No. 2/2011). For this reason, I find the application of the applicant filed herein on 28. 7.2021 totally lacking in merit. I dismiss the same wholly.

D. O. OGEMBO

JUDGE

8. 2.2022.

Court:

Ruling read out in open (on-line) in presence of the applicant (Kamiti Medium) and Ms. Akunja for the state.

D. O. OGEMBO

JUDGE

8. 2.2022.