[2023] KEHC 25965 (KLR)
The court found that the trial court failed to comply with section 333(2) of the Criminal Procedure Code by not accounting for the period the applicant spent in remand custody prior to sentencing. The High Court held that this period must be considered, and therefore revised the applicant's sentence to run from the...
Source-derived case information.
- Citation
- [2023] KEHC 25965 (KLR)
- Parties
- Applicant: Peter Odongo Emitaro; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 97 of 2023
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Sentence Revision Application
- Outcome
- application allowed; sentence revised to account for remand period
- Judges
- DO Ogembo
- Legal Topics
- Sentencing, Remand Custody Credit, Criminal Procedure Code Section 333 2, Sexual Offences, Sentence Revision
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Peter Odongo Emitaro
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Sentence Revision Application
Legal Issues
- 1 Whether the period spent by the applicant in remand custody pending trial should be considered in computing his sentence.
- 2 Whether the trial court erred by failing to account for the remand period as required by law.
Ratio Decidendi
The court found that the trial court failed to comply with section 333(2) of the Criminal Procedure Code by not accounting for the period the applicant spent in remand custody prior to sentencing. The High Court held that this period must be considered, and therefore revised the applicant's sentence to run from the date he was first arraigned in court, 14-11-2017, rather than from the date of sentencing. This ensures compliance with statutory requirements and upholds the applicant's right to have time spent in custody properly credited against his sentence.
Court Disposition
application allowed; sentence revised to account for remand period
Orders
- The applicant shall serve 10 years imprisonment as ordered by the trial court, but the sentence shall run from 14-11-2017, the date of first arraignment.
Full Case Text
Judgment text and source record
20 paragraphs
Emitaro v Republic (Miscellaneous Criminal Application 97 of 2023) [2023] KEHC 25965 (KLR) (23 November 2023) (Ruling)
Neutral citation: [2023] KEHC 25965 (KLR)
Republic of Kenya
In the High Court at Siaya
Miscellaneous Criminal Application 97 of 2023
DO Ogembo, J
November 23, 2023
Between
Peter Odongo Emitaro
Applicant
and
Republic
Respondent
Ruling
1. The applicant, Peter Odongo Emitaro has filed a Notice of motion application herein dated 23/7/2023. The same is brought under section 333(2) of the Criminal Procedure Code and prays that the period that the applicant spent in remand custody awaiting determination of his case be accounted for in his sentence. The Prosecution has not made any substantive response to the application of the applicant.
2. Section 333(2) of the Criminal Procedure Code declares that such period that one spends in custody awaiting the determination of his trial ought to be considered in his sentence. A consideration of the record of proceedings of the lower court would shed light on this issue.
3. The record shows that the applicant was charged with a main charge of attempted defilement contrary to section 9(1)(2) of the Sexual Offences Act, No. 3 of 2006. He was sentenced to serve 10 years imprisonment on 8/8/2018. He had been in remand custody during the pendency of his case.
4. In sentencing the applicant, the trial court did not give account of the period the applicant had spent in remand custody. It ought to have done so in accordance with the requirements of section 333(2) of theCriminal Procedure Code.
5. It is for this reason that I find merit in this application. I accordingly therefore revise the sentence of the applicant herein. The applicant shall serve 10 years imprisonment as ordered by the trial court. The sentence shall however run from 14-11-2017 when the applicant was first arraigned before the court.Orders accordingly.
D.O. OGEMBOJUDGE23. 11. 2023Court:Ruling read out in Open court in the presence of the applicant andMs. Mumu for State.D.O. OGEMBOJUDGE23. 11. 2023