[2023] KEHC 17882 (KLR)
The court found that the sentencing court failed to comply with section 333(2) of the Criminal Procedure Code, as there was no evidence that the period the applicant spent in custody between December 20, 2006 and March 3, 2012 was taken into account when computing his sentence. The court held that this omission...
Source-derived case information.
- Citation
- [2023] KEHC 17882 (KLR)
- Parties
- Applicant: Fanuel Aswani; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E065 of 2022
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Sentence Review Under Section 333(2) of the Criminal Procedure Code
- Outcome
- application allowed
- Judges
- PJO Otieno
- Legal Topics
- Sentencing Procedure, Credit for Time Served, Custodial Sentences, Rights of Convicts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fanuel Aswani
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Sentence Review Under Section 333(2) of the Criminal Procedure Code
Legal Issues
- 1 Whether the sentencing court complied with section 333(2) of the Criminal Procedure Code by taking into account the period the applicant spent in custody before conviction.
- 2 Whether the applicant is entitled to have his sentence computed from the date of first arraignment in court.
Ratio Decidendi
The court found that the sentencing court failed to comply with section 333(2) of the Criminal Procedure Code, as there was no evidence that the period the applicant spent in custody between December 20, 2006 and March 3, 2012 was taken into account when computing his sentence. The court held that this omission constituted a denial of a vested legal benefit. Accordingly, the High Court ordered that the applicant's sentence be computed from the date of his first arraignment, December 20, 2006, thereby giving effect to the mandatory requirements of section 333(2) and upholding the applicant's statutory right to have time served in custody credited towards his sentence.
Court Disposition
application allowed
Orders
- The applicant's sentence shall be computed from December 20, 2006, the date of first arraignment in court.
Full Case Text
Judgment text and source record
23 paragraphs
Aswani v Republic (Miscellaneous Criminal Application E065 of 2022) [2023] KEHC 17882 (KLR) (11 May 2023) (Ruling)
Neutral citation: [2023] KEHC 17882 (KLR)
Republic of Kenya
In the High Court at Kakamega
Miscellaneous Criminal Application E065 of 2022
PJO Otieno, J
May 11, 2023
Between
Fanuel Aswani
Applicant
and
Republic
Respondent
Ruling
1. By a Notice of Motion filed in Court on October 31, 2022 the Applicant having been convicted of the offence of murder in Kakamega High Court Criminal Case No 55 of 2006, does not challenge the conviction nor sentence but urges that the mandatory provisions of Section 333(2) of the Criminal Procedure Code be given effect.
2. The Prosecution does not oppose the application by any affidavit nor ggrounds of opposition but urged the Court to peruse the file and make a determination on whether or not section 333(2) Criminal Procedure Code was complied with by the Court.
3. It is now settled and trite law that every court meting out a sentence is obligated to take into account the period the accused has served in custody pending conclusion of his trial. Taking into account for purposes of that provision means outright deduction of that period from the term imposed by the sentencing Court.
4. This is a benefit of the law that vests in every convict and thus a right and benefit that must not be taken away from the Accused.
5. In underscoring the duty upon the Court and what means to take into account the Court of Appeal did rendered itself in Ahamed Abolfadhi Mohammed vs. Republic [2018] eKLR as follows:-“By dint of section 333(2) of the Criminal Procedure Code, the court was obliged to take into account the period that they had spent in custody before they were sentenced. Although the learned judge stated that he had taken into account the period the appellants had been in custody, he ordered that their sentence shall take effect from the date of their conviction by the trial court. With respect, there is no evidence that the court took into account the period already spent by the appellants in custody. “Taking into account” the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody. It is not enough for the court to merely state that it has taken into account the period already spent in custody and still order the sentence to run from the date of the conviction because that amounts to ignoring altogether the period already spent in custody. It must be remembered that the proviso to section 333(2) of the Criminal Procedure Code was introduced in 2007, to give the court power to include the period already spent in custody in the sentence that it metes out to the accused person. We find that the first appellate court misdirected itself in that respect and should have directed the appellants’ sentence of imprisonment to run from the date of their arrest on June 19, 2012. ”
6. In the Judgment now sought to be reviewed, there is nothing to show that the accused was ever released on bond nor that the court took into account the period between December 20, 2006 when he was arraigned in court and the date he was convicted on March 3, 2012.
7. That is a clear denial of a vested benefit from the law and such denial must be corrected by this Court declaring that the imprisonment term shall be computed from December 20, 2006.
8. Application is thus allowed as prayed.
Dated, delivered and signed at Kakamega this 11th day of May 2023. PATRICK J. O. OTIENOJUDGEIn the presence of:Applicant in personMs. Chala for the RespondentCourt Assistant: Polycap