[2021] KEHC 9599 (KLR)
The trial court erred in law by failing to consider the fourteen days the appellant spent in pre-trial custody as required by section 333(2) of the Criminal Procedure Code. This omission entitled the appellate court to interfere with the sentence. Given the period already served by the appellant and the interests of...
Source-derived case information.
- Citation
- [2021] KEHC 9599 (KLR)
- Parties
- Appellant: Frankline Kipsang Chesire; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kabarnet
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 31 of 2019
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed in part; appellant ordered released unless held on other lawful warrants
- Legal Topics
- Stealing by Servant, Sentencing Principles, Pre Trial Custody, Penal Code Section 281
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Frankline Kipsang Chesire
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the trial court erred by failing to consider the appellant's pre-trial custody period when sentencing.
- 2 Whether the appellant is entitled to have his sentence reduced or to be released due to the time already served.
Ratio Decidendi
The trial court erred in law by failing to consider the fourteen days the appellant spent in pre-trial custody as required by section 333(2) of the Criminal Procedure Code. This omission entitled the appellate court to interfere with the sentence. Given the period already served by the appellant and the interests of justice, the High Court found it appropriate to order the appellant's immediate release unless held on other lawful grounds.
Court Disposition
appeal allowed in part; appellant ordered released unless held on other lawful warrants
Orders
- The appellant is hereby ordered released forthwith unless he is held on other lawful warrants.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KABARNET
CRIMINAL APPEAL NO 31 OF 2019
FRANKLINE KIPSANG CHESIRE....................................................APPELLANT
VERSUS
REPUBLIC..........................................................................................RESPONDENT
(Being an appeal from the original sentence of Hon V.O. Amboko,
RM, dated 13th May 2019 in Criminal Case No 625 of 2018 in the Senior
Principal Magistrate’s Court at Kabarnet, Republic v Frankline Kipsang Chesire)
JUDGMENT
In his petition to this court the appellant has challenged his sentence of three years’ imprisonment in respect of the offence of stealing by servant contrary to section 281 of the Penal Code (Cap 63) Laws of Kenya.
Mr. Mong’are for the respondent has left the issue of sentence to the court to decide.
In his oral submissions in this court, the appellant submitted that he is only left with about four months to complete his sentence. He has therefore urged the court to order for his release from prison.
I find that the appellant was arrested on 23/7/2018. Thereafter he was released on bail on 7/8/2018. It is clear that the appellant was in pre-trial custody for fourteen days.
In sentencing the appellant, the trial court did not take into account the fourteen days the appellant had been in custody. The court was mandatorily required by section 333 (2) of the Criminal Procedure Code (Cap 75) Laws of Kenya to take that period into account when sentencing the appellant. The failure to do so amounts to an error of law that entitles this court to interfere with the discretion exercised by the trial court.
In the circumstances I find that the interests of justice have been served for the period the appellant has been in prison.
In the premises, the appellant is hereby ordered released forthwith unless he is held on other lawful warrants.
Judgment dated, signed and delivered in open court at Kabarnet this 27th day of January 2021.
J M BWONWONG’A
JUDGE
In the presence of
Mr. Kemboi Court Assistant.
Appellant in person present.
Mr. Mong’are for the Respondent.