Maoro v Republic (Criminal Revision E283 of 2022)  KEHC 16210 (KLR) (9 December 2022) (Ruling)
Neutral citation:  KEHC 16210 (KLR)
Republic of Kenya
Criminal Revision E283 of 2022
JN Onyiego, J
December 9, 2022
Areli Yussuf Maoro
(From original conviction and sentence in Criminal Case No. E34 of 2021 of the Principal Magistrate’s Court at Taveta)
1.The applicant was on January 19, 2022 charged before Taveta Principal Magistrate’s court with the offence of stealing contrary to section 268 as read out with section 275 of the Penal Code. Particulars were that on the 16th day of January, 2021 at Chachewa village in Taveta sub-county within Taita Taveta county, stole a bed 5 by 6, (1) maroon high density mattress, 6kg gas cylinder with burner, 2 blue kenpoly chair, 1 blue kenpoly table, radio, all valued at Kshs 17,900/= the property of Michael Njoroge.
2.Having entered a plea of not guilty, the matter proceeded to full trial. He was convicted and sentenced on September 29, 2021 to 3 years imprisonment for the main count.
3.Vide notice of motion dated September 14, 2022 and filed on September 15, 2022 the applicant sought to have the sentence herein reviewed to take into account the period spent in remand custody.
4.In response, Mr Sirima for the state opposed the application thus contending that the applicant is a repeat offender who deserves a deterrent sentence.
5.I have considered the application herein, response thereto and oral submissions by both parties. The applicant is seeking review of sentence on grounds that the trial court did not take into account the period spent in remand custody.
6.From the record, the applicant took plea on January 19, 2021. He remained in custody until the date he was sentenced on September 29, 2021 which translates to 8 months 10 days. Under article 165 (6) and (7) of the Constitution, the High Court has supervisory powers over subordinate courts, tribunals and any person or body exercising quasi function or authority.
7.Equally, under section 362 and 364 of the CPC, the High Court has powers to call for and examine record of criminal proceedings from a subordinate court so as to satisfy itself as to its correctness, legality, propriety of sentence passed or order made and the regularity of proceedings in such subordinate court.
8.In the instant case, this court has been summoned to review the sentence that did not take into account the period served in remand custody. It is trite law that a trial court in conduct of a criminal case is duty bound to consider a convicted person’s period spent in remand custody pursuant to section 333 (2) of the CPC.
9.In this case the court did not take into account such period. See Michael Michael Kisina Nthenge Versus Republic (2021) eKLR where the court stated:
10.In view of the clear requirement under section 333 (2) of the CPC, this court is inclined to intervene and review the sentence imposed of three years by reducing it by 8 months and 10 days being the period spent in remand custody.
11.Accordingly, the application is allowed and the period of 8 months and 10 days be factored into when computing the sentence. Right of appeal 14 days.
DATED SIGNED AND DELIVERED IN OPEN COURT THIS 9TH DAY OF DECEMBER, 2022..............................HON. J. ONYIEGOJUDGE