[2021] KEHC 7778 (KLR)
The court held that, pursuant to Section 333(2) of the Criminal Procedure Code, it is mandatory to take into account the period an accused person has spent in custody prior to sentencing. The petitioner's sentence of 15 years for manslaughter must therefore be calculated from the date of his arrest, 4th May 2010....
Source-derived case information.
- Citation
- [2021] KEHC 7778 (KLR)
- Parties
- Appellant: Bakari Maganga Juma; Respondent: Director of Public Prosecutions
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Petition 203 of 2019
- Procedural Posture
- Resentencing Application / Judgment
- Outcome
- petition allowed in part
- Judges
- DO Ogembo
- Legal Topics
- Resentencing, Manslaughter, Credit for Time Served, Sentence Commencement, Section 333 2 Criminal Procedure Code
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bakari Maganga Juma
Appellant
Director of Public Prosecutions
Respondent
Procedural Posture
Resentencing Application / Judgment
Legal Issues
- 1 Whether the petitioner is entitled to have the period spent in remand custody prior to conviction deducted from his sentence.
- 2 Whether the petition qualifies for resentencing under the Muruatetu case.
Ratio Decidendi
The court held that, pursuant to Section 333(2) of the Criminal Procedure Code, it is mandatory to take into account the period an accused person has spent in custody prior to sentencing. The petitioner's sentence of 15 years for manslaughter must therefore be calculated from the date of his arrest, 4th May 2010. The petition did not qualify for resentencing under the Muruatetu case as the sentence for manslaughter is discretionary and not mandatory. The court thus ordered that the sentence run from the date of arrest, ensuring the petitioner receives credit for time already served in remand custody.
Court Disposition
petition allowed in part
Orders
- The petitioner's sentence of 15 years shall run from the date of arrest, being 4th May, 2010.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
PETITION NO. 203 OF 2019
BAKARI MAGANGA JUMA...................................................................PETITIONER
VERSUS
DIRECTOR OF PUBLIC PROSECUTIONS.......................................RESPONDENT
JUDGMENT ON RESENTENCING
1. The Petitioner herein BAKARI MAGANGHA JUMA was charged with the Offence of murder contrary to 203 as read with Section 204 of the Penal Code.
2. The particulars of the case were that, “on4th May, 2010, at Kariokor Majengo in Voi Township in present day Taita Taveta County, he murdered Beatrice Mwadima.”
3. He was found guilty and sentenced to death. He appealed to the Court of Appeal which by its decision rendered on 29th April, 2016 allowed the appeal, quashed the conviction for murder and set aside the death sentence. The court substituted the charge with manslaughter contrary to Section 202 as read with Section 205 of the Penal Code and sentenced the Petitioner to 15 years’ imprisonment with effect from the date of the Petitioner’s conviction and sentence by the High Court.
4. The Petitioner is now in this court pursuant to Section 333(2) of the Criminal Procedure Code, seeking for his conviction to be calculated from date of his arrest. The petitioner states that he spent three years in remand before he was convicted.
5. Mr. Fedha, learned counsel appearing for the State submitted offences of manslaughter do not carry such mandatory sentences and the court is at liberty to exercise its discretion depending on the circumstances of each case and mitigation of accused person. The court of Appeal considered the circumstance of the case and used its discretion to sentence the petitioner to 15 years imprisonment. Counsel submitted that the petitioner’s petition does not therefore qualify for resentencing under the Muruatetu Case.
6. However, the petitioner is by law entitled to benefit under section 333(2) of the Criminal Procedure Code which states that:
“(2) Subject to the provisions of section 38 of the Penal Code every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.
Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.”
7. It is mandatory that the period which an accused has been held in custody prior to being sentenced must be taken into account in meting out the sentence. Accordingly, the Petitioner’s sentence of 15 years shall run from the date of arrest, being 4th May, 2010.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS 14TH DAY OF APRIL, 2021.
E. K. OGOLA
JUDGE
Judgment delivered via MS Teams in the presence of:
Petitioner in Person
Ms. Wanjohi for DPP
Ms. Peris Court Assistant