[2024] KEHC 14332 (KLR)
The court held that while the applicant had already exercised his right of appeal and should have raised all issues regarding sentence at that stage, the period spent in remand custody prior to sentencing must be considered in accordance with Section 333(2) of the Criminal Procedure Code. The court declined to...
Source-derived case information.
- Citation
- [2024] KEHC 14332 (KLR)
- Parties
- Applicant: DOO; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 117 of 2023
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Sentence Rehearing and Consideration of Remand Period
- Outcome
- Application partially allowed.
- Judges
- RE Aburili
- Legal Topics
- Defilement Offence, Sentencing Review, Remand Custody Credit, Sexual Offences Act, Appeal Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
DOO
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Sentence Rehearing and Consideration of Remand Period
Legal Issues
- 1 Whether the period spent in remand custody prior to sentencing should be considered in computing the applicant's sentence.
- 2 Whether the applicant is entitled to a review of sentence to probation under the Community Service Orders Act.
Ratio Decidendi
The court held that while the applicant had already exercised his right of appeal and should have raised all issues regarding sentence at that stage, the period spent in remand custody prior to sentencing must be considered in accordance with Section 333(2) of the Criminal Procedure Code. The court declined to review the sentence to probation but allowed the sentence to be calculated from the date of arrest, thereby crediting the applicant for time spent in remand custody.
Court Disposition
Application partially allowed.
Orders
- The sentence imposed on the applicant shall be calculated from the date of arrest on 26/7/2016 to 23/3/2017.
- Application for sentence review to probation is declined.
Full Case Text
Judgment text and source record
23 paragraphs
DOO v Republic (Miscellaneous Criminal Application 117 of 2023) [2024] KEHC 14332 (KLR) (8 November 2024) (Ruling)
Neutral citation: [2024] KEHC 14332 (KLR)
Republic of Kenya
In the High Court at Siaya
Miscellaneous Criminal Application 117 of 2023
RE Aburili, J
November 8, 2024
Between
DOO
Applicant
and
Republic
Respondent
Ruling
1. The Applicant DOO is a convict for the offence of defilement contrary to Section 8(1) as read with Section 8 (4) of the Sexual Offences Act. He was sentenced to serve 15 years imprisonment on 23/3/2017 vide Siaya PM SO Case No. 720/2016.
2. He appealed vide Siaya HCCRA 33/2017 which appeal was dismissed on 19/11/2018.
3. He now applies vide his Chamber summons dated 4/1/2023 for sentence rehearing and for the period spent in remand custody to be considered.
4. I have considered the application and the written submissions filed on 13/12/2023 as directed by the court.
5. The applicant exercised his right of appeal wherein he should have raised all issues to do with sentence. He submits that he was reformed hence he should be set free to serve probation under the Community Service Orders Act and that the 9 months spent in custody prior to sentencing be taken into account.
6. From the trial court record which was availed, on 26/8/2016, the convict herein was granted bond of Kshs 500,000/= plus one surety of similar amount.
7. There is however no evidence that he was released on bond. However, the convict filed an appeal wherein he should have raised the period spent in custody. That said, I decline to review the sentence to probation as sought and allow the second limb. The sentence imposed shall be calculated from date of arrest on 26/7/2016 to 23/3/2017.
8. Signal to issue. This file is closed.
DATED, SIGNED AND DELIVERED AT SIAYA THIS 8THDAY OF NOVEMBER, 2024R.E. ABURILIJUDGE