[2020] KEHC 1048 (KLR)
The court found that the trial magistrate failed to comply with Section 333(2) of the Criminal Procedure Code by not crediting the applicant with the two years spent in remand custody. This omission constituted an error apparent on the face of the record, justifying the exercise of the court's revisionary powers....
Source-derived case information.
- Citation
- [2020] KEHC 1048 (KLR)
- Parties
- Applicant: Alex Menza Gona; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 155 of 2020
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Sentence
- Outcome
- sentence varied to comply with Section 333(2) of the Criminal Procedure Code
- Judges
- DB Nyakundi
- Legal Topics
- Sentencing Credit, Remand Periods, Criminal Revision, Sexual Offences, Defilement, Sentence Variation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alex Menza Gona
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the trial court erred by failing to take into account the period the applicant spent in remand custody as required by Section 333(2) of the Criminal Procedure Code.
- 2 Whether the sentence should be revised to give credit for the period spent in lawful custody.
Ratio Decidendi
The court found that the trial magistrate failed to comply with Section 333(2) of the Criminal Procedure Code by not crediting the applicant with the two years spent in remand custody. This omission constituted an error apparent on the face of the record, justifying the exercise of the court's revisionary powers. The court held that the sentence should be varied to commence from the date the applicant was first placed in custody, thereby ensuring compliance with the law and preventing an injustice to the applicant.
Court Disposition
sentence varied to comply with Section 333(2) of the Criminal Procedure Code
Orders
- The applicant's sentence shall commence from 25th October 2006, the date he was first placed in custody.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MALINDI
CRIMINAL REVISION NO. 155 OF 2020
ALEX MENZA GONA................................................................................ APPLICANT
-VERSUS-
REPUBLIC................................................................................................RESPONDENT
Coram: Justice Reuben Nyakundi
Applicant in person
Mr. Alenga for the State
RULING
The applicant Alex Menza Gima was tried and convicted by the Learned trial Magistrate for the offence of defilement contrary to Section 8 (2) of the Sexual Offences Act. He was sentenced to a period of twenty years.
He preferred an appeal to the High Court and on appeal on both conviction and sentence was dismissed. According to the applicant before this Court he is aggrieved by the failure of the Learned trial Magistrate not to take into account the provisions of Section 333 (2) of the Criminal Procedure Code in giving credit to the two year period he spent in remand custody.
Determination
From the record and Judgments of both Courts, there is ample evidence that the Learned trial Magistrate did not comply with Section 333 (2) of Criminal Procedure Code to take into account the period of 2 years the applicant spent in lawful custody pending hearing and determination of the charge.
It is the Law that the period in remand custody be taken into account and be credited in the final sentence imposed by the trial Court. The defect is apparent on the face of the record to warrant exercise of revisionary power of the Court to vary the order on sentence to the extent it commence with effect from 25. 10. 2006.
Here a purposive approach to the remedy under Section 333 (2) of the Code is not to deprive the convict fundamental right to liberty and the right to be deprived of it save in accordance with the principles of fundamental justice.
The end result is that the initial error under Section 333 (2) of the Code is curable by the operation of Section 382 of the Criminal Procedure Code to cure the illegality thereof in which an injustice would be occasioned to the applicant.
DATED, SIGNED AND DELIVERED AT MALINDI THIS 16TH DAY OF DECEMBER 2020
...........................
R. NYAKUNDI
JUDGE