[2023] KEHC 1990 (KLR)
The court held that the applicant was entitled to have the period spent in remand custody prior to conviction credited to his sentence, in accordance with section 333(2) of the Criminal Procedure Code. However, the court declined to review the custodial sentence to a non-custodial sentence, noting the seriousness of...
Source-derived case information.
- Citation
- [2023] KEHC 1990 (KLR)
- Parties
- Applicant: DYM; Respondent: Office Of The Director Of Public Prosecution
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E056 of 2022
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Factoring Remand Period and Sentence Review
- Outcome
- Application partially allowed.
- Judges
- A. Ong’injo
- Legal Topics
- Sentencing Principles, Remand Period Credit, Sexual Offences, Incest, Custodial Vs Non Custodial Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
DYM
Applicant
Office Of The Director Of Public Prosecution
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Factoring Remand Period and Sentence Review
Legal Issues
- 1 Whether the period spent in remand custody prior to conviction should be factored into the applicant's sentence.
- 2 Whether the applicant is entitled to a review of his custodial sentence to a non-custodial sentence.
Ratio Decidendi
The court held that the applicant was entitled to have the period spent in remand custody prior to conviction credited to his sentence, in accordance with section 333(2) of the Criminal Procedure Code. However, the court declined to review the custodial sentence to a non-custodial sentence, noting the seriousness of the offence, the age of the victim, and the statutory requirement for a life sentence where the victim is a minor. The court observed that the applicant had already benefited from a degree of leniency, as the sentence imposed was less than the statutory minimum, and therefore the application only succeeded to the extent of factoring in the remand period.
Court Disposition
Application partially allowed.
Orders
- The period spent in remand custody prior to conviction shall be credited to the applicant's sentence.
- The prayer for review of the custodial sentence to a non-custodial sentence is declined.
Full Case Text
Judgment text and source record
21 paragraphs
DYM v Office of the Director of Public Prosecution (Miscellaneous Criminal Application E056 of 2022) [2023] KEHC 1990 (KLR) (28 February 2023) (Ruling)
Neutral citation: [2023] KEHC 1990 (KLR)
Republic of Kenya
In the High Court at Mombasa
Miscellaneous Criminal Application E056 of 2022
A. Ong’injo, J
February 28, 2023
Between
DYM
Applicant
and
Office Of The Director Of Public Prosecution
Respondent
Ruling
1. The applicant was charged with offence of incest contrary to section 20(1) of the Sexual Offences Act No 3 of 2006. Particulars were that on March 22, 2014 at [particulars witheld] village of Msambweni location in Kwale county within coast region the applicant caused his penis to penetrate the vagina of ZG a female person who to his knowledge was his niece.
2. The applicant was convicted and sentenced to serve 2 years’ jails term. He appealed in Mombasa High Court No 58 of 2016 and the conviction and sentence was upheld.
3. The applicant now seeks that period he spent in remand custody prior to conviction & sentence be factored in his sentence and he should be committed to non-custodial sentence for the reminder of the sentence.
4. The applicant was granted bond of 50,000/= with a surety when arraigned on March 25, 2014 but it appears that upto the time that he was convicted April 7, 2015 he didn’t secure his release on bond and he is therefore entitled to benefit of the provisions of section 333(20 of the Criminal Procedure Code that his sentence of 20 years should run from March 25, 2014.
5. As to whether his sentence should be reviewed to non-custodial sentence the applicant sexually abused his sisters 10 years old daughter instead of protecting her. The proviso to section 20(1) of the Sexual Offences Act is that where the female is a minor the culpit shall be sentenced to serve life imprisonment.
6. The applicant was lucky to get 20 years which I think was inadvertence on the part of the trial magistrate & the applicant should be satisfied with that leniency and serve his sentence. Application succeeds partially.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS 28TH DAY OF FEBRUARY, 2023HON. LADY JUSTICE A. ONG’INJOJUDGEIn the presence of:Ogwel – Court Asst.Mr. Ngiri for StateApplicant – Present in personHon. Lady Justice A. Ong’injo J28/02/2023