[2019] KEHC 3978 (KLR)
The court found that the trial magistrate failed to comply with Section 333(2) of the Criminal Procedure Code by not considering the period the applicant spent in remand custody prior to sentencing. This omission would result in the applicant serving a longer period in custody than the sentence imposed. The court...
Source-derived case information.
- Citation
- [2019] KEHC 3978 (KLR)
- Parties
- Applicant: Christopher Otieno Onyango; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 14 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling
- Outcome
- application allowed
- Legal Topics
- Sentencing Review, Remand Custody Credit, Robbery With Violence, Criminal Procedure Code Section 333 2
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Christopher Otieno Onyango
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling
Legal Issues
- 1 Whether the period spent in remand custody prior to sentencing should be considered as part of the applicant's sentence under Section 333(2) of the Criminal Procedure Code.
Ratio Decidendi
The court found that the trial magistrate failed to comply with Section 333(2) of the Criminal Procedure Code by not considering the period the applicant spent in remand custody prior to sentencing. This omission would result in the applicant serving a longer period in custody than the sentence imposed. The court therefore ordered that the applicant's sentence should be deemed to have commenced from the date of his arrest, thereby ensuring compliance with the statutory requirement and correcting the oversight.
Court Disposition
application allowed
Orders
- The applicant's sentence shall be deemed to have commenced on 3rd March, 2016, the date of his arrest.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT MILIMANI
CRIMINAL DIVISION
MISC. CR. APPLICATION NO. 14 OF 2019
CHRISTOPHER OTIENO ONYANGO..............................APPLICANT
VERSUS
REPUBLIC....................................................................... RESPONDENT
RULING
1. The Applicant was charged with robbery with violence and was subsequently convicted and sentenced to serve six years imprisonment. The sentence was passed on 4th April, 2017. He did not appeal on the sentence or conviction.
2. Before this court is a Notice of Motion application filed on 24th January, 2019. It seeks a review of the sentence, basically urging that the period he was in remand custody be taken to constitute part of the sentence.
3. Under Section 333(2) of the Criminal Procedure Code, the court is called upon to take into account the period an accused was in remand custody prior to sentencing. In the instant case, the learned trial magistrate failed to observe this guideline which implies that the Applicant will be in custody for a longer period than the sentence.
4. Consequently, the application herein must succeed. I order that the sentence starts running from 3rd March, 2016, the date of the Applicant’s arrest.
Dated and Delivered at Nairobi This 30th September, 2019.
G.W.NGENYE-MACHARIA
JUDGE
In the presence of:
1. Applicant present in person
2. Mr. Momanyi for the Respondent