RULING
1. Joseph Kimilu Kimanthi Was arrested on 28th May 2022 and presented to court on the 30th May 2022 where he was charged with the offence of dealing in meat of wildlife species contrary to section 98 (1) of the Wildlife Conservation and Management Act 2013.
2. The particulars of the charge were that on the 28th day of May 2022 at around 1700 hours at Bosnia area in Kibwezi Sub County within Makueni County he was found dealing in meat of wildlife species namely Bush buck weighing 11KG with a street value of Kenya shillings 5000 without authority of the Director General Kenya Wildlife Service.
3. He filed Miscellaneous Application No 42 of 2023 seeking review of his sentence under the provisions of section 333(2) of the Criminal Procedure Code on the ground that at the time of sentencing the learned trial magistrate did not take into consideration the period he had spent in custody prior to the sentencing.
4. I have perused the lower court file Makindu MCCR E385/2022.
5. The applicant was arrested on 28/5/2022 and convicted and sentenced on 10/11/2022. The trial court in meting out the 3 years’ imprisonment sentence did not indicate it had taken into account the period the applicant had been in custody.
6. s. 333 of the Criminal Procedure Code states
333. Warrant in case of sentence of imprisonment
(1) A warrant under the hand of the judge or magistrate by whom a person is sentenced to imprisonment, ordering that the sentence shall be carried out in any prison within Kenya, shall be issued by the sentencing judge or magistrate, and shall be full authority to the officer in charge of the prison and to all other persons for carrying into effect the sentence described in the warrant, not being a sentence of death.
(2) Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.
Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.
7. In the circumstances, in the exercise of the supervisory powers of this court provided by Article 165(6) and (7) of the Constitution and in compliance with section 333 (2) of the Criminal Procedure Code read together with section 362 and 364 of the same code which provide for the said powers and how to exercise them, the sentence meted by the trail court is revised as follows,
Accused is sentenced to serve three years imprisonment to run from the date of his arrest 28/05/2022.
Dated signed and delivered via CTS this 26th February 2025.
Mumbua T Matheka
Judge
CA Nelima