[2022] KEHC 2027 (KLR)
The court found that although the applicant had raised the issue of his pretrial custody during mitigation, the trial court did not indicate whether it considered the 2 years spent in custody when passing sentence. Section 333(2) of the Criminal Procedure Code mandates that such period must be taken into account....
Source-derived case information.
- Citation
- [2022] KEHC 2027 (KLR)
- Parties
- Applicant: Albert Esige Memba; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 51 of 2019
- Procedural Posture
- Criminal Revision / Ruling on Application for Sentence Revision
- Outcome
- application allowed; sentence revised
- Judges
- DO Ogembo
- Legal Topics
- Sentencing Revision, Pretrial Custody Credit, Sexual Offences, Criminal Procedure Code Section 333 2
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Albert Esige Memba
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Sentence Revision
Legal Issues
- 1 Whether the period of 2 years spent in pretrial custody by the applicant should be considered and deducted from the sentence imposed by the trial court.
- 2 Whether the trial court erred by failing to expressly account for the pretrial custody period in sentencing.
Ratio Decidendi
The court found that although the applicant had raised the issue of his pretrial custody during mitigation, the trial court did not indicate whether it considered the 2 years spent in custody when passing sentence. Section 333(2) of the Criminal Procedure Code mandates that such period must be taken into account. The failure to do so constituted an error, and the High Court exercised its revisionary jurisdiction to correct the sentence by deducting the 2 years spent in custody from the 10-year imprisonment term imposed by the trial court.
Court Disposition
application allowed; sentence revised
Orders
- The applicant shall serve an imprisonment term of 10 years less the period of 2 years he remained in custody awaiting the determination of his trial.
- The sentence of the trial court is revised accordingly.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CRIMINALREVISIONCASE51 OF 2019
ALBERT ESIGE MEMBA.................APPLICANT
VERSUS
REPUBLIC......................................RESPONDENT
RULING
This application of the applicant, ALBERT ESIGE MEMBA filed herein on 26. 2.2019, seeks for revision of the sentence. That the sentence be revised to account for the period of 2 years he spent in custody awaiting trial i.e from 10. 9.2015 to 8. 9.2017 be accounted for in the sentence.
The state has opposed this application on grounds that this application has already been determined in a similar cause. Counsel urged that this application be dismissed.
I have considered the submissions of both sides. Indeed section 333(2) of the Criminal Procedure Code declares that the period an accused person spends in custody awaiting determination of his case ought to be considered in the sentence.
I have considered the sentence proceedings of 8. 9.2017, It is clear that in the mitigation of the applicant, he pleaded that he had spent 2 years in custody. The court, in passing the sentence did not indicate whether or not it took into consideration this period. It ought to have done so.
In the circumstances, I find merit in the application of the applicant. I allow the same and revise the sentence of the trial court. The applicant shall serve an imprisonment term of 10 years’ imprisonment less the period of 2 years he remained in custody awaiting the determination of his trial. Orders accordingly.
D. O. OGEMBO
JUDGE
1. 3.2022.
Court:
Ruling read out in court (on-line) in presence of the applicant and Ms. Akunja for the state.
D. O. OGEMBO
JUDGE
1. 3.2022.
‘O’
FROM: HIGH COURT APPELLATE SIDE
TO: G.K. NAIROBI WEST G.K. PRISON
INFO: PHQ.
1ST MARCH, 2022
HCCR REV. NO. 51 OF 2019
HIGH COURT CRIMINAL REVISION NO. 51 OF 2019 ORIGINATING FROM THE CHIEF MAGISTRATE’S COURT AT KIBERA SEXUAL OFFENCES CASE NO. 46 OF 2015. APPLICANT’S ALBERT ESIGE MEMBA NWP/1518/07/LS THE APPLICANT SHALL SERVE AN IMPRISONMENT TERM OF 10 YEARS’ IMPRISONMENT LESS THE PERIOD OF 2 YEARS HE REMAINED IN CUSTODY AWAITING THE DETERMINATION OF HIS TRIAL. ORDERS ACCORDINGLY.
DEPUTY REGISTRAR