Julius Maina Kariuki v Republic

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CRIMINAL REVISION 72 OF 2019 JULIUS MAINA KARIUKI..............................APPLICANT VERSUS REPUBLIC....................................................RESPONDENT RULING The applicant JULIUS MAINA KARIUKI has urged this court by way of an application dated 8.3.2019 and filed herein on 18.3.2019, that this court be pleased to review his sentence so as to consider and take into account the period he spent in custody awaiting determination of his case of 1 year and 4 months. Before the lower court, he was charged with the offence of grievous harm contrary to section 234 of the Penal Code, he was convicted and sentenced to serve 5 years’ imprisonment on 15.8.2018. In response to the application, counsel for the Respondent opposed the same on grounds that the trial magistrate already took into account the applicant’s prayers in the sentence passed. It was noted that the applicant was given a lenient sentence of 5 years’ imprisonment whereas the law provided for life imprisonment for the offence. I have considered the application of the applicant, and the objection by the Respondent. The proviso to section 333(2) of the Criminal Procedure Code states; “Provided that where the person sentenced under subsection (1) has, prior to such sentence, been in custody, the sentence shall take account of the period spent in custody” I have considered the proceedings of the lower court, especially the sentencing proceedings of 1.8.2018. It is not shown whether the court took into account the period the applicant had taken in custody awaiting conclusion of his cases which it ought to have done. It is for this reason that I find merit in this application. I accordingly allow the same and order that the applicant do serve the term of 5 years’ imprisonment as ordered by the lower court less the period of 1 year 4 months he remained remanded in custody awaiting determination of his case. Orders accordingly. D. O. OGEMBO JUDGE 9.6.2021. Court: Ruling read out in open court (on-line) in presence of the applicant (Ruiru prison), and Ms. Kibathi for the state. D. O. OGEMBO JUDGE 9.6.2021. ‘O’ FROM: HIGH COURT APPELLATE SIDE

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