[2019] KEHC 2997 (KLR)
The court held that Section 333(2) of the Criminal Procedure Code mandates that any period spent in custody prior to sentencing must be taken into account when computing the sentence to be served. Since the applicant had spent 2 years, 11 months, and 10 days in remand custody before being sentenced to seven years...
Source-derived case information.
- Citation
- [2019] KEHC 2997 (KLR)
- Parties
- Appellant: Benson Mutua Mwanzia; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 12 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Consideration of Time Spent in Custody
- Outcome
- application allowed
- Judges
- BC Koech
- Legal Topics
- Sentencing, Time Spent in Custody, Sentence Review
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benson Mutua Mwanzia
Appellant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Consideration of Time Spent in Custody
Legal Issues
- 1 Whether the period spent in custody by the applicant should be considered in the computation of his sentence.
- 2 Whether the court has the power to review the sentence to account for time spent in remand custody.
Ratio Decidendi
The court held that Section 333(2) of the Criminal Procedure Code mandates that any period spent in custody prior to sentencing must be taken into account when computing the sentence to be served. Since the applicant had spent 2 years, 11 months, and 10 days in remand custody before being sentenced to seven years imprisonment, the court found merit in the application and ordered that the sentence be reduced by the period already served in custody. The remainder of the sentence would thus commence from the date of sentencing, ensuring compliance with statutory requirements and fairness in sentencing.
Court Disposition
application allowed
Orders
- The applicant's sentence of seven years imprisonment is reduced by 2 years, 11 months, and 10 days spent in remand custody.
- The remainder of the sentence will commence from the date of sentence, namely 31.7.2017.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
MISC CRIMINAL APP. NO. 12 OF 2019
BENSON MUTUA MWANZIA................APPELLANT/APPLICANT
VERSUS
REPUBLIC......................................................................RESPONDENT
RULING
1. The Appellant was charged and convicted with the offence of attempted murder contrary to Section 222(a) of the Penal Code Act. He was sentenced to seven years imprisonment by the trial court and later appealed to this court which appeal was unsuccessful.
2. He then filed the instant application seeking that the period he spent in custody should be considered.
3. Mr. Cliff Machogu, prosecution Counsel, did not oppose the request that the period spent in custody be considered.
4. The issue for determination is whether the court may review the sentence.
5. Section 333 (2) of the Criminal Procedure Code states:
“(2) Subject to the provisions of section 38 of the Penal Code (Cap. 63) 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.”
6. It is the considered opinion of this court having had due regard to Section 333 (2) of the Criminal Procedure Code that the request by the applicant has merit. Accordingly, this court finds that the computation of seven (7) years that the applicant was sentenced to is hereby reduced by a period of 2 years 11 months and 10 days that he was in remand custody so that the remainder of the period of sentence will commence from the date of sentence namely 31. 7.2017.
It is so ordered.
Dated and delivered at Machakos this 29th day of October, 2019.
D. K. Kemei
Judge