[2021] KEHC 2102 (KLR)
The court found that the trial magistrate did not indicate whether the period the applicant spent in custody was considered during sentencing. Section 333(2) of the Criminal Procedure Code mandates that such time must be taken into account. The omission constituted an error justifying revision. The court therefore...
Source-derived case information.
- Citation
- [2021] KEHC 2102 (KLR)
- Parties
- Applicant: Felix Isadia; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 166 of 2019
- Procedural Posture
- Criminal Revision / Ruling on Application for Sentence Review
- Outcome
- application allowed
- Judges
- DO Ogembo
- Legal Topics
- Sentencing Review, Time Spent in Custody, Criminal Revision, Sexual Offences, Application of Section 333 2
- 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
Felix Isadia
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Sentence Review
Legal Issues
- 1 Whether the trial court failed to consider the period the applicant spent in custody prior to sentencing as required by section 333(2) of the Criminal Procedure Code.
- 2 Whether the applicant is entitled to have his sentence revised to account for time spent in remand custody.
Ratio Decidendi
The court found that the trial magistrate did not indicate whether the period the applicant spent in custody was considered during sentencing. Section 333(2) of the Criminal Procedure Code mandates that such time must be taken into account. The omission constituted an error justifying revision. The court therefore allowed the application and ordered that the applicant's 10-year imprisonment term should be computed from the date of sentence, less the 21 months already spent in custody.
Court Disposition
application allowed
Orders
- The applicant shall serve a term of 10 years imprisonment from the date of sentence on 10.8.2018, less a period of 21 months spent in custody.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CRIMINAL REVISION NO.166 OF 2019
FELIX ISADIA ...............................................................................APPLICANT
VERSUS
REPUBLIC ................................................................................RESPONDENT
RULING
The matter now comes up for the application of the applicant, FELIX ISADIA filed herein on 4. 6.2019(undated). The same, seeks a review of the sentence herein. It is brought under section 333(2) of the Criminal Procedure Code that the time the applicant spent in custody awaiting the determination of his trial, be considered in the sentence. The prosecution conceded that in case the trial court did not account for such time spent in custody then the application would not be opposed.
This application is made basically under section 333(2) of the Criminal Procedure Code which at its proviso states;
“Provided that where the person sentenced under sub-section (1), has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.”
In deciding this application, it is therefore imperative to consider the record from the trial court. The applicant faced a charge of attempted defilement contrary to section 9(1) as read with section 9(2) of the Sexual Offences Act No. 3 of 2006. Count II was of Indecent Act with a child. The applicant had been remanded in custody from 2. 11. 2016 till the date of sentence on 10. 8.2018, a period of about 21 months.
The sentencing proceedings of the court of 10. 8.2018 do not reflect if the trial magistrate factored in the period the applicant had spent in custody. It ought to have done so. It is for this reason that I find the application of the applicant for revision of sentence as having merit. I allow the same. I order that the applicant do serve a term of 10 years imprisonment from the date of sentence on 10. 8.2018, less a period of 21 months that he spent in custody. Orders accordingly.
D. O. OGEMBO
JUDGE
18. 11. 2021.
Court:
RULING READ OUT IN COURT (ON-LINE) IN PRESENCE OF THE APPLICANT (KITENGELA PRISON) AND MS. AKUNJA FOR THE STATE.
D. O. OGEMBO
JUDGE
18. 11. 2021.
‘O’
FROM: HIGH COURT APPELLATE SIDE
TO: @ G.K. PRISON ALLO. NAIROBI WEST PRISON
INFO: PHQ.
18TH NOVEMBER 2021
HCCR APPEAL. NO. 150 OF 2019
HIGH COURT CRIMINAL APPEAL NO. 150 OF 2019 ORIGINATING FROM THE CHIEF MAGISTRATE’S COURT AT MAKADARA CRIMINAL CASE NO. 1605 OF 2017. APPELLANT ALEX MUNGI MBUGUA (NWP/1259/018/LS) APPLICANT DO SERVE HIS IMPRISONMENT TERM(S) AS ORDERED BY THE TRIAL COURT LESS THE PERIOD OF 1 YEAR THAT HE SPENT IN CUSTODY AWAITING DETERMINATION OF HIS CASE.
DEPUTY REGISTRAR