[2021] KEHC 7191 (KLR)
The court found that the trial court, in its judgment, expressly considered the period the petitioner spent in custody, as well as mitigation and all relevant circumstances, before passing sentence. The trial court also acknowledged recent legal developments regarding minimum mandatory sentences. Therefore, the...
Source-derived case information.
- Citation
- [2021] KEHC 7191 (KLR)
- Parties
- Applicant: Gerald Kinyua Wambua; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Petition 94 of 2020
- Procedural Posture
- Constitutional Petition / Ruling on Petition for Sentence Revision
- Outcome
- petition dismissed
- Judges
- LM Njuguna
- Legal Topics
- Sentencing Procedure, Pre Sentence Custody, Fair Trial Rights, Application of Section 333, Minimum Mandatory Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gerald Kinyua Wambua
Applicant
Republic
Respondent
Procedural Posture
Constitutional Petition / Ruling on Petition for Sentence Revision
Legal Issues
- 1 Whether the trial court failed to take into account the period the petitioner spent in custody when passing sentence.
- 2 Whether failure to comply with Section 333(2) of the Criminal Procedure Code violated the petitioner.s constitutional rights to a fair trial.
Ratio Decidendi
The court found that the trial court, in its judgment, expressly considered the period the petitioner spent in custody, as well as mitigation and all relevant circumstances, before passing sentence. The trial court also acknowledged recent legal developments regarding minimum mandatory sentences. Therefore, the petitioner's claim that the period spent in custody was not considered was unfounded. The court concluded that there was no violation of Section 333(2) of the Criminal Procedure Code or of the petitioner.s constitutional rights. Consequently, the petition lacked merit and was dismissed.
Court Disposition
petition dismissed
Orders
- The petition is dismissed.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
PETITION NO. 94 OF 2020
GERALD KINYUA WAMBUA................................................................PETITIONER
VERSUS
REPUBLIC.............................................................................................RESPONDENT
RULING
1. The petitioner herein has moved this court by way of the petition dated the 2nd day of November, 2020 under the provisions of Section 333(1)(2) of the Criminal Procedure Code and under Article 27(1)(2); 50(2) and 51(1) of the Constitution.
2. The petitioner has sought revision of his sentence so as to take into account the period he spent in custody. He has also asked the court to declare that failure by the court to comply with Section 333(1)(2) of the Criminal Procedure Code denied him his rights to a fair trial under Articles 50 and 27 of the Constitution.
3. He averred that the trial court did not take into account the period he was in custody and that the court ought to have ordered that the sentence runs from 25/08/2018 and not from 19th July, 2019 when he was convicted.
4. In her response to the petition, counsel for the respondent submitted that the trial court in its judgment took into account the period that the petitioner herein spent in custody, at the time of passing the sentence. She asked the court to dismiss the petition.
5. The court has considered the petition and the submissions by the applicant and by counsel for the respondent. As already stated, the applicant prayed that the time he spent in custody be taken into account; as forming part of the sentence and he invoked Section 333(2) of the Criminal Procedure Code which provides thus;
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.
6. The Court of Appeal in the case of Ahamad Abolfathi Mohammed & Another Vs Republic [2018] eKLRheld that the courts during sentencing ought to take into account the period spent in custody before they sentence.
7. In regard to the instant application, the court has perused the judgment delivered by the trial court in Criminal Case No. 38 of 2018 in the initial trial. On page 11 of the same, the learned magistrate indicated that he considered the mitigation by the accused person, all the circumstances of the case and the relevant factors. This was done before he meted out the sentence of four (4) years imprisonment. The trial court further indicated that it had taken into account the recent development in the law regarding the constitutionality of minimum mandatory sentences after the Muruatetu case.
8. In view of the foregoing, the court finds that the petition has no merits and it is hereby dismissed.
9. It is so ordered.
DELIVERED, DATED AND SIGNED AT EMBU THIS 11TH DAY OF MAY, 2021.
L. NJUGUNA
JUDGE
...................................................for the Petitioner
................................................for the Respondent