1. The applicant was charged tried convicted and sentenced for 7 counts of causing death by dangerous driving contrary to section 46 of the Traffic act Cap 403 Laws of Kenya in Kilungu Principal Magistrate Case 670/2017. He was sentenced to pay fine of Kshs.100,000/= in default one year imprisonment on each of the 7 counts.
2. He filed HCCRA E077/2021. It was dismissed vide the judgment of this court (Hon. Dulu J) on 19/10/2022.
3. On 2/5/2023 he filed this application headed Notice of Petition
a. That I appeal for the application of section 333(2) of the penal code.
b. That my sentence to start from the 24th December, 2016 but not from 1st August, 2021.
c. That was arrested on the 24th December, 2016 but not from 1st August, 2021.
d. That I wish to be present in person for the hearing of this application.
4. It also contained a Petition of Sentence Review
1. That the sentence was too harsh on this case.
2. That I humbly pray for the application of section 333(2) of the penal code.
3. That my sentence to start from the 24th December, 2016 but not from 1st August, 2021
4. That I pray for the sentence to be reduced to the time served.
5. That I wish to be present in court on the hearing of this appeal application.
6. That I pleaded not guilty at trial.
7. That I would be grateful of any other option which the hon. Court would come up with.
5. And a Memorandum of Grounds of Appeal
1. That I humbly pray that my sentence should start from the date of arrest according to section 333(2) of the CPC.
2. That my sentence to start from the 24th December, 2016 but not from 1st August, 2021.
3. That I pray for the sentence to be reduced to the time served.
4. That I pray to be present in court on the hearing of this petition.
5. That I would comply with any other option to be given by this Hon. Court.
6. That the sentence was imposed when no plea of guilt was entered.
6. Supporting sworn affidavit
1. That, I am a Kenyan male adult citizen and of sound mind and the appellant in this appeal and hence competent to swear this oath on my behalf.
2. That I am the accused person in the above mentioned criminal case number.
3. That I am currently held at Makueni G.K Prison.
4. That my grounds of application are attached herein.
5. That I am a poor man and hence pray to this Hon. court to allow me appeal as a pauper.
6. That all facts stated here are true to the best of my knowledge
7. For submissions, he filed submissions he had filed in the HCC 77/2021.
8. I have carefully considered the application and he only issue is whether the application has merit.
9. The application combines an appeal, an application for review of sentence.
10. Both these are overtaken by events because on 19/10/2022 this court pronounced itself,(Hon Dulu J) and dismissed his appeal – thereby upholding both the conviction and the sentence.
11. On the issue of the application of section 333(2) of the Criminal Procedure Code it is evident that the applicant was on bond throughout his trial, hence the provision of the law is not applicable to him.
12. The application is dismissed.
Dated, signed and delivered virtually this 28th August 2024
Mumbua T Matheka
Judge
Ms. Mwanatumu
Ms. Nyakibia for state
Applicant