[2021] KEHC 12939 (KLR)
The court held that the judgment in Mombasa High Court Appeal No. 75 of 2016 intended for the period spent in remand custody to be factored into the 15-year sentence. However, since the specific period was not established in the judgment, it is incumbent upon the Petitioner to provide evidence of the time spent in...
Source-derived case information.
- Citation
- [2021] KEHC 12939 (KLR)
- Parties
- Applicant: Bakari Safari; Respondent: Director of Public Prosecution
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Petition 229 of 2019
- Procedural Posture
- Constitutional Petition / Judgment on Resentencing
- Outcome
- petition allowed upon proof of remand period
- Judges
- DO Ogembo
- Legal Topics
- Defilement, Resentencing, Time Spent in Custody, Sexual Offences Act, Sentence Deduction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bakari Safari
Applicant
Director of Public Prosecution
Respondent
Procedural Posture
Constitutional Petition / Judgment on Resentencing
Legal Issues
- 1 Whether the period spent in remand custody should be deducted from the 15-year sentence imposed on the Petitioner.
- 2 Whether the High Court's prior judgment included the remand period in the sentence.
Ratio Decidendi
The court held that the judgment in Mombasa High Court Appeal No. 75 of 2016 intended for the period spent in remand custody to be factored into the 15-year sentence. However, since the specific period was not established in the judgment, it is incumbent upon the Petitioner to provide evidence of the time spent in remand to the prison authorities. Upon such proof, the remand period (1 year 6 months, if substantiated) shall be deducted from the 15-year sentence. The court clarified that the deduction is not automatic without evidence and that the Petitioner must demonstrate the actual period spent in custody for the benefit to apply.
Court Disposition
petition allowed upon proof of remand period
Orders
- Petition is allowed upon the Petitioner showing to the prison authority that he spent 1 year 6 months in remand.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 229 OF 2019
BAKARI SAFARI.....................................................................PETITIONER
VERSUS
DIRECTOR OF PUBLIC PROSECUTION........................RESPONDENT
JUDGMENT ON RESENTENCING
1. The Petitioner herein was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act. He was alternatively charged with the offence of indecent act with a child contrary to Section 11(1) of the same Act. He pleaded not guilty to the offences. The trial magistrate court found the Petitioner guilty of the main offence of defilement, and convicted him accordingly and sentenced him to life imprisonment. The Petitioner appealed against the sentence and conviction and the same was substituted with a 15 years’ sentence.
2. The brief facts of the charge were as follows: on 1/2/2015 at [particulars withheld] area in Kisauni sub-county within Mombasa the Petitioner intentionally and unlawfully caused his penis to penetrate into the vagina of SMM, a girl aged 8 years.
3. Ms. Balongo, learned prosecutor submitted that the Petitioner by moving this Court seeking that time spent in custody at the time of trial should be included in the 15 years’ sentence, seems not to have read the judgment or that he did not understand the same. Counsel submitted that it is expressly stated in the judgment that the time spent in custody is inclusive of the 15 years’ sentence.
4. Paragraph 87 of the judgment of the Mombasa High Court Appeal No. 75 of 2016 dated 17/12/2018 reads:
“…in the premises, I quash the sentence meted on the Appellant and substitute therefore a sentence of 15 years, the same to take into account the period he has been in custody.”
Ms. Balongo submitted that this means that the time spent in custody was inclusive in the sentence and hence there was no need for the Petitioner herein to move the Court.
5. My reading of Judge Odunga’s ruling stated above is that the Judge left the period the Petitioner had been in remand to be determined and then factored into the said 15 years. So the only thing the Petitioner needs to do is to ascertain the time he spent in remand.
6. Although the Petitioner states that he spent 1 year 6 months in remand, there is no evidence of that, and that is most likely the reason the learned Judge did not include it in the judgment. So, if the Petitioner shows to the prison authorities evidence that he spent 1 year 6 months in remand the said 1 year 6 months shall be deducted from the 15 year sentence.
7. In the upshot, petition is allowed upon the Petitioner showing to the prison authority that he spent 1 year 6 months in remand.
That is the Judgment of the Court.
Dated, Signed and Delivered at Mombasa this 27th day of May, 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