[2023] KEHC 396 (KLR)
The High Court found that although the trial magistrate acknowledged the applicant's remand period, the sentence imposed did not expressly account for the time already spent in custody. Section 333(2) of the Criminal Procedure Code mandates that any period spent in custody prior to sentencing must be considered and...
Source-derived case information.
- Citation
- [2023] KEHC 396 (KLR)
- Parties
- Appellant: Soteri Maina Bundi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal E048 of 2022
- Procedural Posture
- Criminal Appeal / Ruling on Sentence Revision
- Outcome
- Application for revision allowed; sentence revised to run from date of first arraignment.
- Judges
- DO Ogembo
- Legal Topics
- Sentencing Revision, Remand Custody Credit, Sexual Offences, Application of Section 333 2 Cpc
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Soteri Maina Bundi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Sentence Revision
Legal Issues
- 1 Whether the period spent by the applicant in remand custody prior to sentencing should be credited towards his sentence as required by section 333(2) of the Criminal Procedure Code.
- 2 Whether the trial court erred by failing to account for the remand period when imposing the sentence.
Ratio Decidendi
The High Court found that although the trial magistrate acknowledged the applicant's remand period, the sentence imposed did not expressly account for the time already spent in custody. Section 333(2) of the Criminal Procedure Code mandates that any period spent in custody prior to sentencing must be considered and deducted from the term of imprisonment imposed. The court held that the applicant's sentence should run from the date he was first arraigned in court, thereby crediting the remand period. The failure to do so by the trial court was an error warranting revision. The sentence was thus revised to commence from 12 February 2019, the date of first arraignment.
Court Disposition
Application for revision allowed; sentence revised to run from date of first arraignment.
Orders
- The applicant shall serve 10 years imprisonment as ordered by the trial court, but the sentence shall run from 12 February 2019, the date of first arraignment.
- The period spent in remand custody is to be credited pursuant to section 333(2) of the Criminal Procedure Code.
Full Case Text
Judgment text and source record
22 paragraphs
Bundi v Republic (Criminal Appeal E048 of 2022) [2023] KEHC 396 (KLR) (Crim) (31 January 2023) (Ruling)
Neutral citation: [2023] KEHC 396 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Criminal
Criminal Appeal E048 of 2022
DO Ogembo, J
January 31, 2023
Between
Soteri Maina Bundi
Appellant
and
Republic
Respondent
Ruling
1. The applicant, Soteri Maina, has pleaded to this court by way of petition filed on 4. 4.2022 for revision of his sentence. That the period he spent in remand custody be accounted for in his sentence on accordance with section 333(2) of the Criminal Procedure Code. In his submissions in court on 15. 11. 2022, he submitted that he had been in remand from 11. 2.2019 till 15. 7.2021, a period the court failed to consider.
2. Counsel for the state, Ms. Joy, on the other hand submitted that the court at page 2 of the sentence, noted that the applicant has spent 2 years, 3 months and 23 days in custody before sentencing him to serve 10 years imprisonment. The court was urged to make appropriate orders if the same was not factored in the sentence.
3. I have considered the submissions of the 2 sides. I have also perused the record of proceedings before the lower court. The applicant was charged with attempted defilement contrary to section 9(1)(2) of the Sexual Offences Act, No. 3 of 2006. On 15. 7.2021 he was sentenced to serve 10 years imprisonment.
4. It is clear from the sentence proceedings of 28. 6.2021, that the learned trial magistrate noted:“the accused has been in custody from the date of arrest on 11. 2.2019. The accused has spent 2 years, 3 months and 23 days in custody.”
5. Having noted that the applicant had been in custody through the period of trial as above, the court nonetheless went on to pronounced the maximum sentence of 10 years imprisonment on the applicant. The court did not give account to the period he had spent in custody awaiting determination of his case. It ought to have done this.
6. It is for this reason that I find application of the applicant for revision meritorious. I accordingly allow the same and revise the sentence of the applicant. The applicant shall serve 10 years as ordered by the trial court. This sentence shall run from 12. 2.2019, the date the applicant was first arraigned in court. This is pursuant to section 333(2) of the Criminal Procedure Code.It is so ordered.
HON. D. O. OGEMBOJUDGE31ST JANUARY 2023. Court:Ruling read out in court (On line) in the presence of the applicant (kamiti Medium), and Ms. Akunja for the state.D. O. OGEMBOJUDGE31ST JANUARY 2023.