REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

HIGH COURT MISCELLANEOUS APPLICATION NO E109 OF 2021

BENSON NDEGWA KAMAU.........................................................................APPLICANT

VERSUS

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

RULING

1. The applicant by a chamber summons application filed on 7^th April 2021, is seeking for orders that, the Honourable court revise the sentence imposed upon him in; High Court Criminal Case No. 59 of 2015. 

2. The application is based on the provisions of; section 362 of the Criminal Procedure Code, (though erroneously cited as; Article 164 of the Criminal Procedure Code).  It is supported by undated affidavit sworn by the applicant, in which he literally reiterates the prayers in the application.

3. Be that as it were, he avers that, he was held in custody while on trial during the period of; 6^th June 2015, to 17^th February 2018, when he was convicted. However, when the court sentenced him, it did not take into account the subject period as required under the provisions of section 333(2) of the Criminal Procedure Code. 

4. However, the application was opposed by the Respondent, vide grounds of opposition dated; 25^th November 2021, in which it is averred that, the court is functus officio, in that litigation has to come to an end. Further, the application lacks merit and should be dismissed.

5. The parties relied on the materials before the court, and did not file any submissions and/or submitted orally.  I have considered the application in the light of the said material, and I find that, the applicant was charged with the offence of; murder contrary to section 203 as read with section 204 of the penal code.  The information was read to him, and he pleaded not guilty.  The case proceeded to full hearing, and by a judgment dated; 28^th February 2019, he was found guilty of murder and convicted accordingly.

6.  However, the trial court deferred sentence and requested for a pre-sentence report. By a ruling dated; 19^th July 2019, the applicant was sentenced to, serve twenty-five (25) years imprisonment, the sentence over which he seeks to be reviewed.

7. I have considered the ruling on sentence and note that, the Honourable Learned Judge stated, inter alia as follows:  

“Taking into account that the convict has been in custody for a period of five (5) years and is aged twenty six (26) years, an appropriate imprisonment for a period of twenty five (25) years is a just, adequate and proportionate sentence herein to serve the two objectives set out herein……..”

8. From the aforesaid, it is clear that, the period that the applicant was in custody was considered during the sentencing process.  I therefore find that, the application has no merit and I dismiss it.

It is so ordered.

DATED, DELIVERED AND SIGNED ON THIS 8TH DAY OF MARCH 2022.

GRACE L. NZIOKA

JUDGE

In the presence of: -

No appearance for the applicant

Ms Chege for the Respondent

Applicant present at Kamiti

Edwin Ombuna - Court Assistant.