Gitui v Director of Public Prosecution (Criminal Miscellaneous Application E041 of 2022) [2022] KEHC 3217 (KLR) (Crim) (4 July 2022) (Ruling)

Citation
Gitui v Director of Public Prosecution [2022] KEHC 3217 (KLR)
Media Neutral Citation
[2022] KEHC 3217 (KLR)
Court
High Court
Court station
High Court at Nairobi (Milimani Law Courts)
Outcome
Dismissed
Case number
Criminal Miscellaneous Application E041 of 2022
Attorneys
Judges
LN Mutende
Judgment date
4 July 2022
Language
English
Type
Judgment
Original source file
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1.Upon arraignment on 10th June, 2016, Leonard Kanari Gitui the applicant was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. It was stated that he murdered Christopher Muganda Adagi.
2.Having been taken through full trial, the court found him guilty of manslaughter, convicted and sentenced him to serve six (6) years imprisonment on 7th October, 2019.
3.On 31st day of January, 2022 the applicant approached this court through a Notice of Motion seeking review on grounds that the court did not take into account time spent in custody as required by Section 333(2) of the Criminal Procedure Code (CPC) and Section 46(2) of the Prisons Act.
4.During hearing it was urged that time spent in custody was not considered. In this regard, the applicant relied on the case of Ahmad Abolfathi Mohamme Vs. Republic (2018) eKLR where the court held that:“By dint of section 333 (2) of the Criminal Procedure Code, the court was obliged to take into account the period that they had spent in custody before they were sentenced. Although the learned judge stated that he had taken into account the period the appellants had been in custody, he ordered that their sentence shall take effect from the date of their conviction by the trial court. With respect, there is no evidence that the court took into account the period already spent by the appellants in custody. “Taking into account” the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody. It is not enough for the court to merely state that it has taken into account the period already spent in custody and still order thesentence to run from the date of the conviction because that amounts to ignoring altogether the period already spent in custody. …. We find that the first appellate court misdirected itself in that respect and should have directed the appellants’ sentence of imprisonment to run from the date of their arrest on 19th June 2012.”
5.Then the case of Vincent Sila Jona and 87 others vs. The Kenya Prison Service and 2 others Petition No. 15 of 2020 where the court was of the view that the court is enjoined to establish the period the convict was in custody prior to the date of sentencing.
6.The application was opposed by the Respondents through, Ms. Chege, Prosecution Counsel, who urged that time spent in custody was considered and this court being of concurrent jurisdiction with the court that granted the orders cannot interfere with the sentence.
7.I have considered averments of both parties herein. I have also perused the primary file which has the ruling on sentence dated 7th October, 2019.
8.The application is brought pursuant to Section 362 of the CPC a provision of law that grants revisionary jurisdiction to this court. The High Court can only exercise revisionary jurisdiction where there is an illegality, impropriety, incorrectness of any finding or sentence of a subordinate court.
9.It is important to note that this matter was determined by the High Court which at paragraph 19 of the Ruling stated that:“I have considered that the accused was incarcerated for a period of 8 months before he was released on bond”
10.Questioning whether or not that was in compliance with what is provided by Section 333(2) of the CPC is a matter to be interrogated on appeal. As correctly submitted by Counsel for the State, the order having been made by Lesiit J. (As she then was) this court lacks jurisdiction to interrogate it. If indeed the applicant was dissatisfied, he should have appealed to the Court of Appel.
11.It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI, THIS 4TH DAY OF JULY, 2022.L. N. MUTENDEJUDGEIN THE PRESENCE OF:ApplicantMs. Chege - ODPPCourt Assistant - Mutai
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