[2023] KEHC 18532 (KLR)

[2023] KEHC 18532 (KLR)

The court found that the applicant was only in custody for approximately one month prior to sentencing, not the one and a half years claimed. Section 333(2) of the Criminal Procedure Code mandates that any period spent in custody before sentencing must be credited towards the sentence. The court acknowledged the evolving jurisprudence that mandatory minimum sentences, particularly in sexual offences, are unconstitutional to the extent that they remove judicial discretion. However, in this case, the only period to be credited is the actual time spent in custody prior to sentencing. The court ordered that the committal warrant be amended to reflect the correct commencement date of the...

Citation
[2023] KEHC 18532 (KLR)
Parties
Applicant: Benson Gitahi; Respondent: Republic
Court
High Court
Court Station
High Court at Eldoret
Jurisdiction
Kenya
Judgment Date
5 June 2023
Case Number
Miscellaneous Criminal Application E167 of 2021
Procedural Posture
Miscellaneous Criminal Application / Sentence Review Ruling
Outcome
Application for review of sentence partially allowed.
Judges
RN Nyakundi
Legal Topics
Sentencing Review, Mandatory Minimum Sentences, Sexual Offences, Judicial Discretion, Remand Credit, Constitutional Rights
Source Language
English
Criminal Law Sentencing Review Mandatory Minimum Sentences Sexual Offences Judicial Discretion Remand Credit Constitutional Rights

Case Brief

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Parties

Benson Gitahi

Applicant

Republic

Respondent

Procedural Posture

Miscellaneous Criminal Application / Sentence Review Ruling

Legal Issues

  1. 1 Whether the applicant is entitled to have the period spent in custody prior to sentencing credited towards his sentence.
  2. 2 Whether the mandatory minimum sentence imposed under the Sexual Offences Act is unconstitutional and subject to judicial discretion.

Ratio Decidendi

The court found that the applicant was only in custody for approximately one month prior to sentencing, not the one and a half years claimed. Section 333(2) of the Criminal Procedure Code mandates that any period spent in custody before sentencing must be credited towards the sentence. The court acknowledged the evolving jurisprudence that mandatory minimum sentences, particularly in sexual offences, are unconstitutional to the extent that they remove judicial discretion. However, in this case, the only period to be credited is the actual time spent in custody prior to sentencing. The court ordered that the committal warrant be amended to reflect the correct commencement date of the...

Court Disposition

Application for review of sentence partially allowed.

Orders

  • The committal warrant shall be reviewed/amended for the custodial sentence commencement date to be June 15, 2012.
  • The application for review of sentence is partially successful in favour of the applicant.