1.The Applicant herein was charged with the offence of assault causing actual bodily harm contrary to section 251 of the Penal Code. He was first arraigned in court on May 3, 2021 when he took plea and denied the charges. The matter proceeded for trial and at the end, the Applicant was on July 27, 2022 convicted and sentenced to pay a fine of Kshs 200,000/= or in default, to serve 4 years imprisonment.
2.The Applicant filed the instant application on May 23, 2023 seeking the revision of his sentence under Section 333 (2) of the Criminal Procedure Code. The Application is supported by the Applicant’s affidavit and is premised on the following grounds: -
5.THAT he is remorseful for the act he did.
3.The Respondent did not oppose the Application which was canvassed by way of oral submissions. Counsel for the Respondent urged the court to consider the period that the Applicant had spent in remand custody while awaiting his trial. On his part, the Applicant submitted that the trial proceeded while he was in remand custody and that he has served a substantial part of his 4 years sentence. He stated that he is an old and sickly man with a sick wife. He further stated that his daughter died and left him with orphans who solely depended on him for their upkeep. He urged the Court to reduce his sentence or release him.
4.I have considered the Application and the submissions made by the parties.
5.The right to apply for a review of a decision by a subordinate court is provided for under Article 50 (2) (q) of the Constitution which states thus: -The Constitution of Kenya, 2010Article 50 - Fair hearing(2)Every accused person has the right to a fair trial, which includes the right—(q)If convicted, to appeal to, or apply for review by, a higher court as prescribed by law.
6.The High Court’s Revisionary powers are contained under Sections 362 and 364 of the Criminal Procedure Code which stipulate as follows: -
7.The High Court is empowered to review the decision of a subordinate court in order to satisfy itself that the decision under review is correct, legal and proper.
8.A perusal of the court record reveals that the Applicant was arrested on April 30, 2021 and arraigned before the trial court on May 3, 2021. I note that even though the Applicant was granted bond of Kshs 50,000/=, he was unable to make bond and remained in custody during the entire trial until July 26, 2022 when he was sentenced to serve for 4 years imprisonment or pay a fine of Kshs 200,000.
9.From the above narration of the sequence of events that followed the Applicant’s arrest, it is clear that the Applicant was in remand custody for a period of 1 year 3 months and has been in prison for close to 1 year.
10.It is now an established principle that courts are required to consider the time spent by an accused in pre-trial custody at the point of sentencing. This principle is stated under Section 333 of the Criminal Procedure Code as follows: -
11.Similarly, the Judiciary Sentencing Policy Guidelines also address the issue of the period spent by an accused person in pre-trial custody. The Judiciary Sentencing Policy Guidelines at paragraph 7 states thus:-
13.Flowing from the above precedent and statutory provisions, it is evident that the trial court did not consider the period that the Applicant spent in pre-trial custody when passing its sentence. It is my finding that the sentence was therefore excessive. While this Court appreciates that sentencing is a preserve of the trial court, such sentences must be in tandem with the law and meet the interests of justice. I am persuaded by S vs Nchunu & Another (AR 24/11)  ZAKZPHC6, where the Kwa Zulu Natal High Court stated: -
14.In the present case, it is evident that the Applicant regrets his actions as he has had time, while in custody, to reflect on the offence that he had committed. The Applicant submitted that he has since reformed, reconciled with the complainant and would like to be reunited with his family.
15.I have taken the Applicant’s advanced age of 74 years and the fact that he has already served a substantial part of his sentence. I have also considered the period that that he spent in custody while awaiting trial. I find that there is merit in this Application and I therefore allow it.
16.Consequently, I review the Applicant’s sentence and substitute it with the period that the Applicant spent in custody while awaiting trial and the prison term already served.
17.In the end, I direct that the Applicant be set at liberty forthwith unless he is otherwise lawfully held.
18.It is so ordered.