Mganga v Republic (Criminal Revision E321 of 2022)  KEHC 16217 (KLR) (9 December 2022) (Ruling)
Neutral citation:  KEHC 16217 (KLR)
Republic of Kenya
Criminal Revision E321 of 2022
JN Onyiego, J
December 9, 2022
Livingstone Mrefu Mganga
((From original conviction and sentence in Criminal Case No. E101 of 2022 of the Principal Magistrate’s Court at Voi))
1.The Applicant was on 15th February, 2022 charged with the offence of threatening to kill Contrary to Section 223(1) of the Penal Code (Count One). Particulars were that on the 6th day of January, 2022 at around 2:00a.m at Railways area in Voi Sub-County within Taita Taveta County, without lawful excuse uttered words ‘fungua mlango na utoke nje nataka kukuwa’ threatening to kill Damaris Wakesho Kirusa.
2.Count II, he was charged with being armed in public Contrary to Section 88 of the Penal Code (Count 2). Particulars were that on the 13th day of February, 2022 at around 4:40p.m at Voi Police Station in Voi Sub-County within Taita Taveta County, without lawful excuse went armed with a kitchen knife in a public place Voi Police Station in such a manner as to cause fear to number 63957 PC Ruto Amos.
3.Having returned a plea of not guilty, the matter proceeded to full trial. Upon being convicted, he was on 5th September, 2022 sentenced to 1 year imprisonment for each count and sentences to run concurrently.
4.Subsequently, the Applicant approached this court through an undated letter seeking mercy from the court as well as consideration of the period spent in remand custody in computing sentence.
5.During the hearing Mr. Sirima for the state conceded to the Applicant’s application. I have considered the application herein and the response thereof. This court is being asked to review the trial court’s sentence pursuant to Section 333(2) of the CPC which provides that a trial court in conduct of a criminal trial should take into account the period spent in remand custody before pronouncing its sentence.
6.I have looked at the court record. The Applicant took plea on 15th February, 2022. He remained in custody until 5th September, 2022 when he was sentenced. He therefore remained in custody for 6 months and 20 days.
7.Under Article 165(6) and (7) of the Constitution, the High Court has been bestowed with supervisory powers over subordinate courts. Further, Section 362 and 364 does empower the High Court with the power to call for and examine a record of criminal proceedings of a subordinate court so as to satisfy itself of the correctness, legality, propriety of the sentence passed or order made and the regularity of proceedings of such court.
8.In the instant case, the trial court was duty bound to consider the period spent in custody before imposing the appropriate sentence. See Michael Kisina Nthenge =Versus= Republic (2021) eKLR.
9.Accordingly, I am satisfied that the application is merited and the same is allowed with orders that the period of 6 months and 20 days spent in remand custody be considered and taken into account when computing sentence.Dated signed and delivered in open court this 9th day of December, 2022.HON. J. ONYIEGOJUDGE