[2017] KEHC 9604 (KLR)
The court found that the trial magistrate failed to consider the period the applicant spent in remand custody prior to conviction and sentencing, as required by Section 333(2) of the Criminal Procedure Code and the Sentencing Policy Guidelines. This omission could result in an excessive and disproportionate...
Source-derived case information.
- Citation
- [2017] KEHC 9604 (KLR)
- Parties
- Applicant: David Nganga Karanja; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 68 of 2017
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Consideration of Remand Period in Sentencing
- Outcome
- application allowed; sentence commuted to period served; applicant to be released forthwith unless otherwise lawfully held
- Judges
- LK Kimaru
- Legal Topics
- Sentencing Guidelines, Remand Custody Credit, Handling Suspected Stolen Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Nganga Karanja
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Consideration of Remand Period in Sentencing
Legal Issues
- 1 Whether the trial court erred by failing to take into account the period the applicant spent in remand custody before sentencing.
- 2 Whether the applicant is entitled to have his custodial sentence reduced to reflect the period already served in remand custody.
Ratio Decidendi
The court found that the trial magistrate failed to consider the period the applicant spent in remand custody prior to conviction and sentencing, as required by Section 333(2) of the Criminal Procedure Code and the Sentencing Policy Guidelines. This omission could result in an excessive and disproportionate sentence. The High Court determined that had the remand period been considered, a less severe sentence would likely have been imposed. Consequently, the court commuted the applicant's sentence to the period already served and ordered his immediate release unless otherwise lawfully held.
Court Disposition
application allowed; sentence commuted to period served; applicant to be released forthwith unless otherwise lawfully held
Orders
- The custodial sentence imposed upon the applicant is commuted to the period served.
- The applicant is ordered set at liberty forthwith unless otherwise lawfully held.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
MISC. CRIMINAL APPLICATION NO.68 OF 2017
DAVID NGANGA KARANJA…………………………………………………………………APPLICANT
VERSUS
REPUBLIC……………………………………………………………………………………RESPONDENT
RULING
The Applicant, David Nganga Karanja was convicted of the alternative charge of handling suspected stolen property contrary to Section 322(1) of the Penal Code. He was sentenced to serve five (5) years imprisonment. The Applicant was sentenced on 31st May 2016. He has applied to this court to take into consideration the period that he was in remand custody before his conviction. He has pleaded with the court to direct that the sentence that was imposed upon him by the trial magistrate to run from 13th June 2014 when he was placed in remand custody. During the hearing of the application, the Applicant urged the court to take into consideration the fact that during the period that he had been in lawful custody, he had learnt his lesson, was remorseful and pleads with the court to exercise leniency on him. Ms. Kimiri for the State opposed the application. She submitted that the offence that the Applicant was convicted attracted a maximum custodial sentence of fourteen (14) years imprisonment. The custodial sentence of five years imprisonment that was imposed upon the Applicant was lenient in the circumstances. She urged this court to disallow the application taking into consideration the short period that the Applicant has served the sentence.
This court has considered the Applicant’s plea for reduction of sentence. The basis of the Applicant’s application is that he wishes the court to take into consideration the period that he was in remand custody before he was convicted and sentenced to serve the custodial sentence by the trial magistrate. This court has perused the proceedings of the trial court. It was clear to this court that, indeed, the trial court did not take into consideration the period that the Applicant was in remand custody before he was convicted and sentenced to serve the custodial sentence. Under Paragraph 7. 10 of the Sentencing Policy Guidelinesissued by the Judiciary:
“The proviso to Section 333(2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody if the convicted person had been in custody during trial. Failure to do so impacts on the overall period of detention which may result in an excessive punishment that is not proportional to the offence committed.”
In the present application, it was clear that if the trial court had taken into consideration the period that the Applicant was in remand custody, most probably it would have sentenced the Applicant to serve a less severe sentence. In the premises therefore, this court finds merit with the Applicant’s application as a result of which the custodial sentence imposed upon the Applicant is commuted to the period served. He is ordered set at liberty forthwith unless otherwise lawfully held. It is so ordered.
DATED AT NAIROBI THIS 18TH DAY OF JULY 2017
L. KIMARU
JUDGE