[2020] KEHC 9807 (KLR)
The court held that the applicant was entitled to have the two years spent in remand custody prior to conviction taken into account when computing his custodial sentence. The trial court's failure to do so was an error. Applying Section 333(2) of the Criminal Procedure Code and the Court of Appeal's guidance in...
Source-derived case information.
- Citation
- [2020] KEHC 9807 (KLR)
- Parties
- Applicant: Abdikadir Musa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 333 of 2019
- Procedural Posture
- Criminal Revision / Ruling on Application for Sentence Review
- Outcome
- sentence varied to account for remand period
- Judges
- LK Kimaru
- Legal Topics
- Sentencing Principles, Remand Custody Credit, Sexual Offences, Sentence Review
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abdikadir Musa
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Sentence Review
Legal Issues
- 1 Whether the period the applicant spent in remand custody prior to conviction should be taken into account in computing his custodial sentence.
- 2 Whether the trial court erred by failing to consider the remand period when sentencing the applicant.
Ratio Decidendi
The court held that the applicant was entitled to have the two years spent in remand custody prior to conviction taken into account when computing his custodial sentence. The trial court's failure to do so was an error. Applying Section 333(2) of the Criminal Procedure Code and the Court of Appeal's guidance in Ahmad Abolfathi Mohammed & Another, the High Court set aside the original sentence of twenty years and substituted it with a sentence of eighteen years imprisonment, effective from the date of conviction, thus giving full credit for the remand period.
Court Disposition
sentence varied to account for remand period
Orders
- The custodial sentence of twenty years imprisonment imposed on the applicant is set aside.
- The applicant is sentenced to eighteen years imprisonment with effect from 7th February 2013, taking into account the two years spent in remand custody.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
CRIMINAL REVISION NO.333 0F 2019
ABDIKADIR MUSA.............................................................APPLICANT
VERSUS
REPUBLIC......................................................................RESPONDENT
RULING
The Applicant, Abdikadir Musa was convicted of the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act in Makadara Chief Magistrate’s Court, Criminal Case No.513 of 2011. He was sentenced to serve twenty (20) years imprisonment on 7th February 2013. In his application before this court, the Applicant pleads with the court to take into consideration the period of two (2) years that he was in remand custody prior to his conviction. It was his case that this period was not taken into consideration by the trial court hence he was prejudiced. The application is not opposed by the State. Mr. Momanyi for the State submitted that the Applicant is entitled to have the two (2) years that he was in remand custody prior to his conviction taken into account in computing the period that he will ultimately serve in prison.
This court has carefully considered the facts of this case and the Applicant’s grounds for seeking to have the custodial sentence meted on him reviewed by this court. It was clear from his application that the Applicant was entitled to have the period that he spent in remand custody taken into account before the trial court sentenced him to serve custodial sentence. The Court of Appeal in Ahmad Abolfathi Mohammed & Another Criminal Appeal No.135 of 2016 (unreported) held thus at Page 28:
“By dint of section 333(2) of the Criminal Procedure Code, the court was obliged to take into account the period that they had spent in custody before they were sentenced. Although the learned judge stated that he had taken into account the period the appellants had been in custody, he ordered that their sentence shall take effect from the date of their conviction by the trial court. With respect, there is no evidence that the court took into account the period already spent by the appellants in custody. “Taking into account” the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody. It is not enough for the court to merely state that it has taken into account the period already spent in custody and still order the sentence to run from the date of the conviction because that amounts to ignoring altogether the period already spent in custody. It must be remembered that the proviso to section 333(2) of the Criminal Procedure Code was introduced in 2007 to give the court power to include the period already spent in custody in the sentence that it metes out to the accused person.”
In the premises therefore, the custodial sentence of twenty (20) years imprisonment that the Applicant was sentenced to serve as from 7th February 2013 is hereby set aside and substituted by a custodial sentence of 18 years imprisonment with effect from the said 7th February 2013. This court has taken into account the period of two years that the Applicant was in remand custody prior to his conviction by the trial court. It is so ordered.
DATED AT NAIROBI THIS 24TH DAY OF JUNE 2020
L. KIMARU
JUDGE