[2017] KEHC 9703 (KLR)
The court held that the trial magistrate had already considered the period the applicant spent in custody before sentencing, as required by law. There is no statutory provision mandating the deduction of the pre-sentence custody period from the sentence, especially in cases involving felonies. The circumstances of...
Source-derived case information.
- Citation
- [2017] KEHC 9703 (KLR)
- Parties
- Applicant: David Kariuki Wachira; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 82 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Revision of Sentence
- Outcome
- application dismissed
- Legal Topics
- Sentence Revision, Pre Sentence Custody, Grievous Harm, Sentencing Guidelines
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Kariuki Wachira
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the period of about 3 years spent in custody by the applicant prior to sentencing should be deducted from his sentence.
- 2 Whether the trial court properly considered the period spent in custody as required by law.
Ratio Decidendi
The court held that the trial magistrate had already considered the period the applicant spent in custody before sentencing, as required by law. There is no statutory provision mandating the deduction of the pre-sentence custody period from the sentence, especially in cases involving felonies. The circumstances of the case, including the gravity of the offence and the permanent harm caused to the complainant, justified the sentence imposed. The application for revision was therefore unmerited and dismissed.
Court Disposition
application dismissed
Orders
- The application for revision of sentence is dismissed.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
MISC. CR. APPLICATION NO. 82 OF 2017
DAVID KARIUKI WACHIRA……..APPLICANT
VERSUS
REPUBLIC …….……….…….RESPONDENT
RULING
By Notice of Motion application dated 15th March, 2017, the Applicant prays for revision of his sentence so that the period of about 3 years he spent in custody is deducted from his sentence.
He was charged with the offence of attempted murder but was found guilty for the offence of causing grievous harm contrary to Section 234 of the Penal Code. He was sentenced to serve 25 years imprisonment on 25/10/2003. In passing the sentence, the trial court in part delivered itself as follows:
“The court has treated the accused as a first offender and has noted the period he has been in custody and also his mitigation plea. The court however also notes the extent of the injuries the complainant sustained which left her disfigured and also notes the suffering the complainant underwent………..”
No doubt from the above passage the court took into account the period the Applicant has spent in remand as required by Section 333(2) of the Criminal Procedure Code and Sections 7. 10 and 7. 11 of the Sentencing Policy Guidelines. There is no provision in law that the period spent in custody must be deducted from the sentence (emphasis mine). Each case must be considered on its merit in deciding whether or not his period should be deducted from the sentence.
Section 7. 12 only references that where an accused was charged with a misdemeanor and had been in remand for a period equal to the sentence or more, he shall be discharged under Section 35(1) of the Penal Code.
In the present case, the Applicant was found guilty of a felony. The sentence provided under Section 234 of the Penal Code is of up to life imprisonment. The circumstances of the case were grave. The Applicant poured acid on the complainant. The complainant was in hospital for a period of more than one year. She suffered permanent disfigurement which she will have to live with for the rest of her life. My view is that the sentence passed was not only reasonable but lenient in the circumstances. Further, the trial magistrate bore in her mind the period the Applicant has spent in custody before passing the sentence. This is not a case in which the court would be inclined to reduce the sentence. The application is unmerited. I dismiss it accordingly.
Dated and Delivered at Nairobi this 20th day of November, 2017.
G.W. NGENYE-MACHARIA
JUDGE
In the presence of;
1. Applicant present in person
2. M/s Akuja for the Respondent.