[2019] KEHC 3638 (KLR)
The court held that, pursuant to section 333(2) of the Criminal Procedure Code, the period the appellant spent in custody prior to sentencing must be taken into account when computing the sentence. The court found the application meritorious and ordered that the ten-year sentence imposed on the appellant should be...
Source-derived case information.
- Citation
- [2019] KEHC 3638 (KLR)
- Parties
- Appellant: Felix Munyao Ndunda; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 235 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Sentence Review Under Section 333(2) of the Criminal Procedure Code
- Outcome
- application allowed
- Judges
- BC Koech
- Legal Topics
- Sentencing Review, Time Spent in Custody, Sexual Offences, Application of Section 333 2
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Felix Munyao Ndunda
Appellant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Sentence Review Under Section 333(2) of the Criminal Procedure Code
Legal Issues
- 1 Whether the court should take into account the period the appellant spent in custody prior to sentencing when computing the sentence period.
- 2 Whether the sentence should be deemed to commence from the date of arrest as per section 333(2) of the Criminal Procedure Code.
Ratio Decidendi
The court held that, pursuant to section 333(2) of the Criminal Procedure Code, the period the appellant spent in custody prior to sentencing must be taken into account when computing the sentence. The court found the application meritorious and ordered that the ten-year sentence imposed on the appellant should be computed from the date of his arrest, 24th June, 2014, rather than the date of sentencing. This ensures compliance with statutory requirements and fairness in the administration of criminal justice.
Court Disposition
application allowed
Orders
- The ten-year sentence imposed on the appellant shall run from the date of arrest, 24th June, 2014.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT MACHAKOS
MISC CRIMINAL APPLIC NO. 235 OF 2018
FELIX MUNYAO NDUNDA....................................APPELLANT
VERSUS
REPUBLIC.............................................................PROSECUTOR
RULING
1. The applicant was convicted on appeal for the offence of indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act. He was sentenced by this court to 10 years imprisonment to run from the date of sentencing namely 3rd October, 2014. He has now applied to this court for review under section 333(2) of the Criminal Procedure Code Act.
2. The state conceded to the application.
3. The application was disposed of by way of written submissions and the appellant submitted that his application should be allowed and the court ought to take into consideration the time he spent in custody.
4. Mr. Cliff Machogu, prosecution Counsel, conceded to the application and cited the case of Kyalo Muindi v R (2017) eKLR.
5. The issue for determination is whether the court may grant the orders sought.
6. The prayer sought is governed by Section 333 (2) of the Criminal Procedure Code that states:
“(2) Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.
Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.”
7. It is the considered opinion of the court having had due regard to Section 333 (2) of the Criminal Procedure Code that the appellant’s application is meritorious.
8. Accordingly, this court finds that the computation of ten (10) years that the appellant was sentenced to shall run from the date when the Appellant was arrested to wit 24th June, 2014.
It is so ordered.
Dated and delivered at Machakos this 17th day of October, 2019.
D. K. Kemei
Judge