REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KABARNET MISC. CRIMINAL APP. NO. 10 OF 2019 EVANS KIPRUTO TALLAM.....APPELLANT =VERSUS= REPUBLIC...............................RESPONDENT RULING 1. In his application to the Court, the appellant, whose appeal to the High Court has been delivered by this Court [see Judgment dated 13/12/2018] prays that the Court grants him remission of 1/3 of his sentence and that the sentence commences from the date of arrest as provided by section 333 (2) of the Criminal Procedure Code. 2. The Court took views of the DPP and the officers of Court present, Mr. Mbeche, Mr. Kipnyekwei and Mr. Kipkulei advocates, on the question whether an appellate Court on a criminal appeal may correct or amend its Judgment after delivery. The views ranged from the one side of the pendulum that the Court’s hands are tied by its Judgment and it cannot amend its Judgment to the other side that it could correct minor errors not affecting the substantial determination of the Judgment. The submission of the Counsel were made off the cuff on invitation by the Court and this Court does not feel properly and fully served with argument on the legal point to enable it make a determination and thus must await an opportune time when elaborate submissions are made to the Court. Determination 3. The Court is, however, able to make a determination of the appellant’s application because as regards the request for the sentence to commence on the date of arrest, the Court already dealt with the issue in its Judgment of 13/12/18 at paragraph 20 thereof when it ruled as follows: “I consider that a sentence of imprisonment for a term of 10 years fully meets the justice of the case and the object of deterrence of the criminal justice system, having regard to the pre-trial detention of the appellant since arrest on 17/9/2013”. This Court had already complied with the Proviso to section 333 (2) of the Criminal Procedure Code, which requires a sentencing Court to “take account of” the period of remand before Judgment while considering the sentence of imprisonment. It does not require that sentence must commence from the day of arrest, only that the Court considers the period of pre-trial remand. 4. The issue of remission is a matter in the discretion of the Commissioner of Prisons under section 46 of the Prisons Act to be exercised in accordance with the provisions of that section, and the Act. 5. I do not find merit in the appellant’s application and the same is dismissed. Order accordingly. DATED AND DELIVERED THIS 3RD DAY OF JULY 2019 EDWARD M. MURIITHI JUDGE Appearances: Appellant in person. Ms. Macharia, Ass. DPP for the Respondent.
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