[2021] KEHC 3325 (KLR)
The court found that the applicant was in remand custody for sixteen months prior to his conviction and that this period was not considered by the trial court when sentencing him to the statutory minimum of fifteen years for defilement. Applying Section 333(2) of the Criminal Procedure Code, the High Court held that...
Source-derived case information.
- Citation
- [2021] KEHC 3325 (KLR)
- Parties
- Applicant: David Simiyu Waswa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 36 (E36) of 2021
- Procedural Posture
- Miscellaneous Criminal Application / Sentence Review
- Outcome
- sentence varied
- Judges
- LK Kimaru
- Legal Topics
- Sentencing Review, Remand Period Deduction, Sexual Offences, Defilement, Minimum Sentence, Criminal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Simiyu Waswa
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Sentence Review
Legal Issues
- 1 Whether the period the applicant spent in remand custody prior to conviction should be considered in computing his sentence.
- 2 Whether the trial court erred by not deducting the remand period from the applicant's sentence.
Ratio Decidendi
The court found that the applicant was in remand custody for sixteen months prior to his conviction and that this period was not considered by the trial court when sentencing him to the statutory minimum of fifteen years for defilement. Applying Section 333(2) of the Criminal Procedure Code, the High Court held that the applicant's sentence should be reduced by the period spent in remand. The court therefore ordered that the applicant serve a term of thirteen years and eight months, effective from the date of conviction and sentencing by the trial magistrate's court.
Court Disposition
sentence varied
Orders
- The applicant's sentence is reduced by sixteen months to account for the period spent in remand custody.
- The applicant shall serve a term of thirteen years and eight months with effect from 3rd July 2017.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITALE
MISC. CRIMINAL APPLICATION NO. 36 (E36) OF 2021
DAVID SIMIYU WASWA................APPLICANT
VERSUS
REPUBLIC ................................RESPONDENT
RULING
The Applicant, David Simiyu Waswa was convicted of defilement contrary to Section 8(1) as read with Section 8 (4) of the Sexual Offences Act. He was sentenced to serve fifteen (15) years imprisonment. He has applied to this court to have the period that he was in remand custody prior to his conviction taken into account. He told the court that he was in remand custody for a period of Seventeen (17) months before he was convicted. In sentencing him, the trial court did not take this period into consideration.
This court has perused the Proceedings of the trial magistrate’s court. The Applicant was arraigned before the trial court on 14th March 2016. He was convicted on 3rd July 2017. He was not released on bond during the entire period of the trial of the case. In total, he was in remand custody for a period of Sixteen (16) months prior to his conviction. This period was not taken into account when the Applicant was sentenced to serve the minimum sentence prescribed by Statute.
In the premises therefore, this court formed the view that the Applicant made a case for the review of his sentence under Section 333(2) of the Criminal Procedure Code. The sentence of the Applicant is accordingly reduced by the said period of Sixteen (16) months that he was in remand custody. The Applicant shall therefore serve a term of 13 years and 8 months with effect from 3rd July 2017 when he was convicted and sentenced by the trial Magistrate’s court. It is so ordered.
DATED AT KITALE THIS 7TH DAY OF OCTOBER 2021.
L. KIMARU
JUDGE