[2020] KEHC 1008 (KLR)
The court found that the trial magistrate failed to comply with Section 333(2) of the Criminal Procedure Code by not crediting the petitioner with the two years spent in remand custody. The High Court, exercising its revisionary jurisdiction under Section 362 of the Criminal Procedure Code, determined that the...
Source-derived case information.
- Citation
- [2020] KEHC 1008 (KLR)
- Parties
- Petitioner: Ali Kahindi Kibuta; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition 23 of 2020
- Procedural Posture
- Constitutional Petition / Ruling on Sentence Revision
- Outcome
- sentence revised to credit remand period
- Judges
- DB Nyakundi
- Legal Topics
- Sentencing Revision, Remand Custody Credit, Burglary Offence, Penal Code Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ali Kahindi Kibuta
Petitioner
Republic
Respondent
Procedural Posture
Constitutional Petition / Ruling on Sentence Revision
Legal Issues
- 1 Whether the trial court erred by failing to credit the petitioner with the two years spent in remand custody when imposing sentence.
- 2 Whether the High Court should revise the sentence to comply with Section 333(2) of the Criminal Procedure Code.
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 petitioner with the two years spent in remand custody. The High Court, exercising its revisionary jurisdiction under Section 362 of the Criminal Procedure Code, determined that the sentence should be revised to reflect the time already served in remand. The revision was allowed to ensure the sentence was lawful and just, and the petitioner was granted credit for the remand period.
Court Disposition
sentence revised to credit remand period
Orders
- The applicant shall be credited with the two years period spent in remand custody.
- The sentence imposed by the trial court is revised accordingly.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MALINDI
CONSTITUTIONAL PETITION NO. 23 OF 2020
ALI KAHINDI KIBUTA............................PETITIONER
VERSUS
REPUBLIC...............................................RESPONDENT
Coram: Hon. Justice R. Nyakundi
Petitioner in person
Mr. Alenga for the state
RULING
This is a petition by the convict Kahindi Kibutainitially charged, tried and convicted for the offence of burglary and stealing contrary to Section 304 as read with Section 279 of the Penal Code. At the end of it all the trial Magistrate sentenced him to serve five years imprisonment.
In the chamber summons filed in Court on 21. 8.2020 he now seeks revision of sentence on grounds that during the order there was an oversight by the Court of not factoring the two year period spent in remand custody.
Determination
The Law
It is provided for under Section 362 of the Criminal Procedure Code that: “The High Court may call for and examine the record of any magistrate’s Court for the purpose of satisfying itself as to the correctness, legality and profusely of any finding, sentence or order recorded or passed and as the regularity of any proceedings of the subordinate Court. These provisions therefore gives the High Court power to exercise the power of revision on any other proceedings before the subordinate Courts.”
To that extent I have perused the record and I note that the Learned trial Magistrate while imposing sentence failed to give credit to the applicant for the two years he spent in remand custody pending trial and conclusion of the case.
For purposes of giving effect to Section 333 (2) of the Criminal Procedure Code the applicant shall be credited with the two years period spent while in remand custody. In the result, I find merit in the revision which I accordingly allow by granting the order.
DATED, SIGNED AND DELIVERED AT MALINDI THIS 16TH DAY OF DECEMBER 2020
...........................
R. NYAKUNDI
JUDGE