[2023] KEHC 2898 (KLR)
The court found that the applicant was in custody throughout the trial and that the trial court failed to comply with section 333(2) of the Criminal Procedure Code by not taking into account the period of pretrial incarceration. The absence of evidence from the prosecution to the contrary reinforced this finding....
Source-derived case information.
- Citation
- [2023] KEHC 2898 (KLR)
- Parties
- Applicant: Charles Odhiambo Abonyo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E053 of 2022
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Sentence Computation Under Section 333(2) of the Criminal Procedure Code
- Outcome
- application allowed in part
- Judges
- PJO Otieno
- Legal Topics
- Sentencing Computation, Pretrial Custody Credit, Section 333 2 Cpc, Supervisory Jurisdiction, Concurrent Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Odhiambo Abonyo
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Sentence Computation Under Section 333(2) of the Criminal Procedure Code
Legal Issues
- 1 Whether the applicant is entitled to have the period spent in pretrial custody deducted from his sentence under section 333(2) of the Criminal Procedure Code.
- 2 Whether the trial court erred by failing to specify the commencement date of the applicant's sentence and to consider pretrial incarceration.
Ratio Decidendi
The court found that the applicant was in custody throughout the trial and that the trial court failed to comply with section 333(2) of the Criminal Procedure Code by not taking into account the period of pretrial incarceration. The absence of evidence from the prosecution to the contrary reinforced this finding. Consequently, the High Court exercised its supervisory jurisdiction to correct the omission, holding that the applicant's concurrent sentences should be computed from the date of his arrest, April 4, 2019, thereby ensuring compliance with statutory requirements and upholding the applicant's rights under the law.
Court Disposition
application allowed in part
Orders
- The concurrent sentences imposed by the trial court on the applicant shall be computed from April 4, 2019.
- The Notice of Motion dated August 15, 2022 is allowed to the extent stated.
Full Case Text
Judgment text and source record
22 paragraphs
Abonyo v Republic (Miscellaneous Criminal Application E053 of 2022) [2023] KEHC 2898 (KLR) (31 March 2023) (Ruling)
Neutral citation: [2023] KEHC 2898 (KLR)
Republic of Kenya
In the High Court at Kakamega
Miscellaneous Criminal Application E053 of 2022
PJO Otieno, J
March 31, 2023
Between
Charles Odhiambo Abonyo
Applicant
and
Republic
Respondent
Ruling
1. By an application dated August 15, 2022 the Applicant pleads with the Court for an order that the sentence imposed upon him by the trial court starts to run from the date he was arrested and arraigned in Court. Essentially the application invokes the power of the Court to supervise the lower courts pursuant to article 165 (7) and the compulsive application of section 333 (2) of the Criminal Procedure Code.
2. Pursuant to that mandate the Court has perused the record at the trial Court and noted that having been convicted, the Applicant was sentenced to serve jail terms of 5, 1, 1 & 2 years for various counts of the charge sheet and the sentence was made to run concurrently.
3. When sentences run concurrently, the shorter terms are subsumed into the longest. It is therefore not necessary for the Applicant to seek that the sentences run concurrently when the trial court did direct so.
4. However, the commencement date of computation of the term of imprisonment was not isolated and identified by the Court and in that event it is taken to run from the date of sentence.
5. The law under Section 333 (2) Criminal Procedure Code make it mandatory that where the accused remains in custody during trial, the period of such incarceration be taken into account. In this matter the trial Court never alluded to that period at all. The Court has perused the court file and there is no evidence that the Applicant was ever admitted or released on bail/bond during the trial. The prosecution has not availed anything to suggest that the Applicant was not in incarceration.
6. It is therefore the finding of the Court that having been in custody throughout the trial, he was entitled to get the benefit of that period reduced from his imprisonment term by having the term be computed from the date of arrest.
7. For reasons that the trial Court failed to apply the provisions of Section 333(2) Criminal Procedure Code, the Notice of Motion dated August 15, 2022 is allowed to the extent that the concurrent sentences by the trial Court shall be computed from the April 4, 2019.
DATED, DELIVERED AND SIGNED AT KAKAMEGA THIS 31ST DAY OF MARCH 2023. PATRICK J O OTIENOJUDGEIn the presence of:The Applicant in personMs Chala for the RespondentCourt Assistant: Polycap