1. In his application dated 12th June 2024, the applicant sought review of his sentence imposed by the lower court in Murang’a Criminal case No. E436 of 2024.
2. The trial court record shows that the applicant was convicted on his own plea of guilty for the offence of House Breaking contrary to Section 304 and Stealing contrary to Section 279 (b) of the Penal Code. He was sentenced to three years imprisonment on the first limb and one year imprisonment on the second limb of the offence. The sentences were ordered to run concurrently.
3. The applicant now seeks review of the aforesaid sentence on grounds that he was now rehabilitated and was remorseful for the offence he committed. He also complained that when sentencing him, the learned trial magistrate failed to consider the time he had spent in lawful custody. In addition, the applicant claimed that he was a first offender and that he was 27 years old; that he deserved to be considered for a non-custodial sentence to enable him reuild his life and take care of his widowed mother.
4. When the application came up for hearing, the applicant was absent as he had not been produced from prison custody. Upon considering the application and the nature of the orders sought, I found that it was suitable for determination without hearing any of the parties under Section 365 of the Criminal Procedure Code (CPC).
5. I have considered the application, the applicant’s supporting affidavit and the record of trial court. Under Section 362 of the CPC, this court has wide powers to call for and review the orders, findings or sentence made by the trial court if it was satisfied that the impugned order, sentence or finding was a product of a mistake, illegality or impropriety on the trial court’s part.
6. As a general rule, for this court to interfere with a sentence imposed by the trial court, it must be satisfied that the sentence was either illegal or that when imposing it, the trial court applied wrong legal principles or considered irreverent factors or failed to consider relevant ones.
The court can also interfere with the sentence if it was convinced that it was harsh and excessive considering the circumstances of the case.
This principle was expounded by the Court of Appeal in the case of Macharia V Republic (2003) KLR 115-118 when it expressed itself as follows:
“…The principle upon which this court will act in exercising its jurisdiction to review or alter a sentence imposed by the trial court have been firmly settled as far back as 1954, in the case of Ogalo s/o Owuor (1954) EACA at page 270, wherein the predecessor of this court stated: “the court does not alter a sentence on mere ground that if the member of the court had been trying the appellant, they might have passed a somewhat different sentence and it will not ordinarily interfere with the discretion exercised by a trial judge unless as was said in James vs.R, (1950) 18 EACA 147 it is evident that the judge has acted upon some material factors to this we would also add third criterion namely, that the sentence is manifestly excessive in view of the circumstances of the case….: “
7. In this case, having looked at the trial magistrate’s pre-sentence notes, I have not found any indication that when sentencing the applicant, the learned trial magistrate erred in any way or abused his discretion. The applicant upon inquiry by the court conceded that he was a repeat offender and that he had previously served both a custodial and a non-custodial sentence as indicated in the pre-sentence report.
8. In his plea in mitigation before the trial court, the applicant admitted that the victim of his crime was his own mother. Looking at the pre-sentence report in its entirety and considering the fact that the applicant has conceded that he was a repeat offender, I am unable to fault the sentence meted out to the applicant by the trial court.
The sentence was lawful as it was in accordance with the law. I cannot also say that the same as either harsh or excessive in the circumstances of this case.
9. The only error that the learned trial magistrate appears to have made was his failure to consider or to take into account the period the applicant had spent in lawful custody contrary to the mandatory provisions of Section 333 (2) of the Criminal Procedure Code.
10. The court record shows that the applicant was arrested on 9th May 2024. He was convicted on his own plea of guilty on 13th May 2024 and he remained in lawful custody till 3rd June 2024 when he was sentenced. He had therefore spent a period of over three weeks in custody prior to the date he was sentenced. This period should have been computed as a part of his sentence which was not done.
11. For the foregoing reasons, the application partially succeeds to the extent that the applicant’s sentence shall take effect from 9th May 2024 which is the date he was arrested.
12. The Hon. Deputy Registrar is directed to transmit this ruling to the applicant in the prison in which he is currently serving sentence.
13. It is so ordered.
DATED, SIGNED and DELIVERED at MURANG’A this 27th February 2025.
HON. C.W. GITHUA
JUDGE