[2019] KEHC 12123 (KLR)
The court found that the trial magistrate failed to apply the mandatory requirement under Section 333(2) of the Criminal Procedure Code to consider the period the applicant spent in remand custody prior to conviction. The applicant had been in custody for three years and seven months, a period exceeding the sentence...
Source-derived case information.
- Citation
- [2019] KEHC 12123 (KLR)
- Parties
- Applicant: Antony Njonge Muiruri; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 252 of 2019
- Procedural Posture
- Criminal Revision / Ruling
- Outcome
- application allowed
- Legal Topics
- Sentencing Principles, Pre Conviction Custody, Remand Periods
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Antony Njonge Muiruri
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling
Legal Issues
- 1 Whether the trial court erred by failing to consider the period the applicant spent in custody prior to conviction during sentencing.
- 2 Whether the applicant is entitled to have the remand period deducted from his sentence.
Ratio Decidendi
The court found that the trial magistrate failed to apply the mandatory requirement under Section 333(2) of the Criminal Procedure Code to consider the period the applicant spent in remand custody prior to conviction. The applicant had been in custody for three years and seven months, a period exceeding the sentence imposed. The court held that this oversight was a fundamental error in sentencing and ordered the applicant's immediate release unless otherwise lawfully held.
Court Disposition
application allowed
Orders
- The applicant shall be forthwith set free unless otherwise lawfully held.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
CRIMINAL REVISION NO. 252 OF 2019
ANTONY NJONGE MUIRURI.....................APPLICANT
VERSUS
REPUBLIC...................................................RESPONDENT
RULING
1. I have considered the respective submissions. I entirely concur with the learned State Counsel. The provision to Section 333(2) of the Criminal Procedure Code requires the court, in sentencing, to take into account the period an accused was in custody prior to the conviction.
2. This, the learned trial magistrate failed to apply this cardinal principle of sentencing.
3. There is no doubt that the Applicant having taken plea on 13/1/2015 and was convicted on 14/8/2019 was in remand for three years seven months. He has therefore remained in custody for a period in excess of the sentence. I accordingly order that he be forthwith set free unless otherwise lawfully held.
Dated and Delivered at Nairobi This 9th day of December, 2019.
G.W.NGENYE-MACHARIA
JUDGE.
In the presence of;
1. Applicant present in person
2. M/s Nyauncho for the Respondent.