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Ramadhan v Republic (Criminal Revision E059 of 2022) [2022] KEHC 16219 (KLR) (9 December 2022) (Ruling)
Neutral citation:
[2022] KEHC 16219 (KLR)
Republic of Kenya
Criminal Revision E059 of 2022
JN Onyiego, J
December 9, 2022
Between
Maalim Ramadhan
Applicant
and
Republic
Respondent
(From original conviction and sentence in Criminal Case No. 02 of 2019 of the Senior Resident Magistrate’s Court at Taveta)
Ruling
1.The Applicant was charged with the offence of defilement Contrary to Section 8 (1) as read out with Section 8(2) of the Sexual Offences Act number 3 of 2006 (Count One). Particulars are that on the 22nd day of November, 2018 at around 1200hours at [Particulars Withheld] Village in Taveta township within Taita-Taveta County unlawfully and intentionally caused his penis to penetrate the vagina of RK a child aged 3 years.
2.For Count 2, he was charged with the offence of being unlawfully present in Kenya Contrary to Section 53(1) (5) as read with Section 53 (2) of the Kenyan Citizen and Immigration Act. Particulars are that on the 30th day of December, 2018 at around 2300hours at [Particulars Withheld] village in Taita Taveta Township within Taita-Taveta County was found being unlawfully present in Kenya without a valid passport and being a Tanzanian national.
3.Applicant pleaded guilty to Count 2 to which he was sentenced to a fine of Kshs. 50,000/= in default serve 6 months. Having denied the charge in respect of Count I, a plea of not guilty was entered. The matter then proceeded to full trial. He was finally found guilty of the alternative count and sentenced to 10 years imprisonment.
4.Subsequently, by chamber summons filed on April 28, 2022, the Applicant sought revision of sentence on grounds that the court did not consider the period spent in custody.
5.In response, Mr. Sirima for the state had no objection.
6.This court has been summoned to exercise its supervisory role under Section 362 and 364 of the CPC which confers authority upon the High Court to call upon the record of a subordinate court and to examine the same so as to satisfy itself as to the correctness, legality, propriety of the sentence passed or order made and the regularity of the proceedings of such subordinate courts.
7.Equally, the Constitution under Article 165 (6) and (7) of the does donate supervisory powers to the High Court over subordinate courts. Section 333 (2) of the CPC provides that before a trial court can pronounce its sentence in any criminal trial, it ought to consider the period spent in custody. This position was emphasized in the case of Michael Kisina Nthenge v Republic [2021] eKLR.
8.In the instant case, the Applicant stayed in custody from the date he took plea on January 3, 2019 until when he was sentenced on September 20, 2019 translating to 6 months 20 days. Therefore, the Applicant is entitled to 6 months and 20 days to be factored into when computing sentence. Right of appeal 14 days.
DATED SIGNED AND DELIVERED IN OPEN COURT THIS 9TH DAY OF DECEMBER, 2022.......................................HON. J. ONYIEGOJUDGE
