[2024] KEHC 8006 (KLR)
The court found that the trial court failed to comply with the mandatory requirement under section 333(2) of the Criminal Procedure Code to consider the period the applicant spent in remand custody prior to sentencing. The applicant was in custody for 5 months and 7 days before conviction, and this period was not...
Source-derived case information.
- Citation
- [2024] KEHC 8006 (KLR)
- Parties
- Applicant: Michael Opiyo Etyang; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kibera
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 131 of 2024
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Sentence
- Outcome
- application allowed
- Judges
- DR Kavedza
- Legal Topics
- Sentencing Principles, Remand Custody Credit, Revision of Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Michael Opiyo Etyang
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the trial court failed to consider the period the applicant spent in remand custody when passing sentence.
- 2 Whether the applicant is entitled to have his sentence revised to account for time spent in custody.
Ratio Decidendi
The court found that the trial court failed to comply with the mandatory requirement under section 333(2) of the Criminal Procedure Code to consider the period the applicant spent in remand custody prior to sentencing. The applicant was in custody for 5 months and 7 days before conviction, and this period was not deducted from his five-year sentence. The failure to account for this period was a legal error that prejudiced the applicant. The High Court, therefore, revised the sentence to ensure that the period spent in remand custody is deducted from the total term of imprisonment, in accordance with the law and established judicial precedent.
Court Disposition
application allowed
Orders
- The sentence of five years imprisonment shall be computed less by 5 months and 7 days spent in remand custody.
- The sentence shall run from the date of conviction.
Full Case Text
Judgment text and source record
22 paragraphs
Etyang v Republic (Criminal Revision 131 of 2024) [2024] KEHC 8006 (KLR) (2 July 2024) (Ruling)
Neutral citation: [2024] KEHC 8006 (KLR)
Republic of Kenya
In the High Court at Kibera
Criminal Revision 131 of 2024
DR Kavedza, J
July 2, 2024
Between
Michael Opiyo Etyang
Applicant
and
Republic
Respondent
Ruling
1. The applicant was charged and after a full trial convicted for the offence of robbery with violence contrary to section 296(2) of the Penal Code. He was sentenced to serve five (5) years imprisonment. He has now filed an application seeking revision of sentence. He filed an affidavit in support of his motion. The arguments raised are that the trial court failed to consider the time she spent in reman custody during the computation of sentence under the provision of section 333(2) of the Criminal Procedure Code, Cap 75 of the Laws of Kenya.
2. I have considered the application, the affidavit in support and the applicable law. I have also considered the trial court record. The issue for consideration is whether the trial court considered the time the applicant spent in remand custody.
3. The proviso to section 333(2) of the Criminal Procedure Code obligates the court to consider the time already spent in custody. The duty to take in account the period an accused person had remained in custody in sentencing under the proviso to section 333(2) of the Criminal Procedure Code which is couched in mandatory terms was acknowledged by the Court of Appeal in Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR and Bethwel Wilson Kibor v Republic [2009] eKLR and more recently in the High Court case of Vincent Sila Jona & 87 others v Kenya Prison Service & 2 others [2021] eKLR.
4. It is therefore clear that it is mandatory that the period which an accused has been held in custody prior to being sentenced be considered in meting out the sentence where it is not hindered by other provisions of the law.
5. From the record, the applicant was arrested on 22nd May 2023. He was arraigned in court for take plea. He was never released on bond until his conviction on 31st October 2023. He, therefore, spent 5 months and 7 days in remand custody. From the record, it is clear that the period was not factored in during his sentencing. Guided by the law, the court is of the view that the application ought to be considered, as failure to do so would amount to denying the applicant a right due to the failure of the court to discharge an obligation bestowed upon it by law.
6. I thus allow the application. In the premises, I make the following orders: the sentence of five (5) years imprisonment shall be computed less by 5 months and 7 days and shall run from the date of conviction.
Orders accordingly.
RULING DATED AND DELIVERED VIRTUALLY THIS 2NDDAY OF JULY 2024D. KAVEDZAJUDGE