[2021] KEHC 3564 (KLR)
The court held that Section 333(2) of the Criminal Procedure Code mandates that any period spent in pre-trial custody must be taken into account when computing a convict's sentence. The petitioner had spent four years in remand before being sentenced. The court found that the law is clear and unambiguous in...
Source-derived case information.
- Citation
- [2021] KEHC 3564 (KLR)
- Parties
- Petitioner: Donald A. Shiraku; Respondent: Director of Public Prosecutions
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Petition 109 of 2020
- Procedural Posture
- Criminal Petition / Judgment
- Outcome
- Petition allowed. Sentence to be computed from 30/10/2007.
- Judges
- DO Ogembo
- Legal Topics
- Sentencing, Pre Trial Custody, Remand Periods, Murder, Penal Code Section 333 2
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Donald A. Shiraku
Petitioner
Director of Public Prosecutions
Respondent
Procedural Posture
Criminal Petition / Judgment
Legal Issues
- 1 Whether the period spent in pre-trial custody should be considered in computing the petitioner.s sentence under Section 333(2) of the Criminal Procedure Code.
Ratio Decidendi
The court held that Section 333(2) of the Criminal Procedure Code mandates that any period spent in pre-trial custody must be taken into account when computing a convict's sentence. The petitioner had spent four years in remand before being sentenced. The court found that the law is clear and unambiguous in requiring that the sentence be computed from the date the petitioner was first remanded. Accordingly, the petition was allowed and the petitioner’s sentence was ordered to be computed from 30/10/2007, the date he was first taken into custody.
Court Disposition
Petition allowed. Sentence to be computed from 30/10/2007.
Orders
- The petition is allowed.
- The petitioner’s sentence shall be computed as from 30/10/2007.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
PETITION NO. 109 OF 2020
DONALD A. SHIRAKU.............................................................PETITIONER
VERSUS
THE DIRECTOR OF PUBLIC PROSECUTIONS...............RESPONDENT
JUDGMENT
1. The accused, Donald Amwayi Shiraku alias Kandamaji faces a charge of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the charge are that:
“On the night of 17th/18th October 2007 at Kalalani village, Mwavumbo Location in Kwale District, within Coast Province murdered ATHUMANI BAKARI.”
2. The Petitioner was convicted and jailed to serve 20 years on 2/12/2011.
3. The Petitioner now seeks to be released to time he spent in remand from 30/10/2007 to 2/12/2011.
4. The Petitioner seeks for the four (4) years of the pre-trial custody under Section 333 (2) of the Criminal Procedure Code, which states that:
“Subject to the provisions of Section 38 of the Penal code, every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this code.
Provided that the person convicted under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take into account of the period spent in custody.”
5. It is clear that the law allows convict to have back time spent in remand.
6. this petition therefore has merit. The same is allowed. The Petitioner’s sentence shall be computed as from 30/10/2007.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS 30TH DAY OF SEPTEMBER, 2021.
E. K. OGOLA
JUDGE
Judgment delivered via MS Teams in the presence of:
Petitioner in person
Ms. Anyumba for DPP
Ms. Peris Court Assistant