1.The applicant was charged with the offence of breaking into a building and committing a felony contrary to section 306(a) of the Penal Code & the offence of handling stolen goods contrary to section 322 (1),(2)at Wamunyu PMCR No E010 OF 2022 and was sentenced to pay a fine of Kshs 100,000/= or in default to serve two (2) years imprisonment. The applicant filed this application 0n 20th June 2023 and specifically sought that the time spent in remand from January 14, 2022 to August 28, 2020 when he was sentenced, be factored in the sentence in line with section 333(2) of the Criminal Procedure Act.
2.The applicant chose to rely on the affidavit supporting his application and oral submissions made in court where he restated what was in his affidavit.
3.The respondent, through Prosecution counsel Mr. Mang’are did not oppose this application and stated that the court could use its discretion to make a determination after considering the proceedings in the primary file.
B.Analysis of Law
4.I have considered the application as well as the response by the Prosecution counsel.
5.The powers of the High court in revision are contained in section 362 through to 366 of the Criminal Procedure Code (cap.75). Section 362 specifically provides as follows: -
6.What the High Court can do under its revision jurisdiction is stated undersection 364 of the Criminal Procedure Code cap 5, which states as follows: -
7.The applicant’s grievance that the period in remand ought to have been considered has merit and from the proceedings before the trial court it is clear that the applicant was in remand for seven (7) months before he changed his plea and was sentenced to serve 2 years imprisonment.
9.The provisions of Judiciary sentencing policy Guidelines also state that;
10.The applicant has a legitimate expectation that during trial he is subject to equal treatment before law and is accorded a fair hearing, which includes his right to have all relevant provisions of the law to be applied in favorably where the circumstances allow. See Ahmad Abolfathi Mohammed & another v Republic (2018) eKLR & Bethwel Wilson Kibor v Republic (2009) eKLR.
11.The court had unlimited jurisdiction to determine, whether the applicants right was breached underarticle 165(3)(b) of the Constitution 2010. I find that this is an application where the courts discretion can be exercised in favour of the applicant and direct that the seven (7) months spent in custody be included in the sentence melted out vide the judgment dated August 22, 2022.
12.It is hereby so ordered.