[2024] KEHC 13764 (KLR)
The High Court held that the trial court failed to explicitly state whether the sentence imposed on the appellant took into account the period he had spent in remand custody. Section 333(2) of the Criminal Procedure Code and the Judiciary Sentencing Policy Guidelines mandate that such time must be considered when...
Source-derived case information.
- Citation
- [2024] KEHC 13764 (KLR)
- Parties
- Appellant: Abdirashid Ali Guyo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal E024 of 2024
- Procedural Posture
- Criminal Appeal / Sentence Review
- Outcome
- Application allowed. Period spent in custody to be considered in sentence computation.
- Judges
- JN Onyiego
- Legal Topics
- Burglary, Sentencing Review, Remand Custody Credit, Handling Stolen Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abdirashid Ali Guyo
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Sentence Review
Legal Issues
- 1 Whether the appellant is entitled to have the period spent in remand custody deducted from his sentence under section 333(2) of the Criminal Procedure Code.
- 2 Whether the trial court properly considered the time spent in custody when passing sentence.
Ratio Decidendi
The High Court held that the trial court failed to explicitly state whether the sentence imposed on the appellant took into account the period he had spent in remand custody. Section 333(2) of the Criminal Procedure Code and the Judiciary Sentencing Policy Guidelines mandate that such time must be considered when computing the sentence. The appellant was arrested on 26 August 2022 and sentenced on 14 March 2023, amounting to approximately 6 months, 2 weeks, and 2 days in custody. The court ordered that this period be credited towards the appellant's sentence, ensuring compliance with statutory and policy requirements and upholding the principle of substantial justice.
Court Disposition
Application allowed. Period spent in custody to be considered in sentence computation.
Orders
- The 6 months, 2 weeks, and 2 days the applicant spent in custody shall be considered when computing the sentence.
Full Case Text
Judgment text and source record
26 paragraphs
Guyo v Republic (Criminal Appeal E024 of 2024) [2024] KEHC 13764 (KLR) (7 November 2024) (Judgment)
Neutral citation: [2024] KEHC 13764 (KLR)
Republic of Kenya
In the High Court at Garissa
Criminal Appeal E024 of 2024
JN Onyiego, J
November 7, 2024
Between
Abdirashid Ali Guyo
Appellant
and
Republic
Respondent
(Being an appeal from the conviction and sentence by Hon. H. M. Nyaberi-CM in Garissa Criminal Case No. E568 of 2022 delivered on 14. 3.2023)
Judgment
1. The appellant was charged and convicted with the offence of burglary contrary to section 304(1)(b) as read with section 304(2) of the Penal Code. The particulars were that on 28. 09. 2022 at around 2300hrs at Madogo Township within Tana River County, he broke and entered the dwelling house of one Salim Mohamed Jafah with intent to steal therein and did steal from therein one Samsung galaxy A12 mobile phone worth 14,500/- the property of the said Salim Mohamed Jafah.
2. He also faced an alternative charge of handling stolen property contrary to section 322(1)(2) of the Penal Code. The particulars were that on 28. 09. 2022 at around 2300hrs at Madogo Township within Tana River County, otherwise than in the cause of stealing dishonestly retained one Samsung galaxy A12 mobile phone knowing or having reason to believe it to be stolen.
3. He was convicted and thereafter sentenced to 3 years imprisonment.
4. The appellant has since filed this application seeking review of the sentence pursuant to section 333(2) of the Criminal Procedure Code. He urged this court to embrace section 333(2) of the CPC and take into account the time he had spent in remand custody.
5. I have considered the application herein and the response thereof. Section 333(2) of the Criminal procedure code provides as follows:(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.
6. Similarly, ‘The Judiciary Sentencing Policy Guidelines’ also require that the court should take into account the time spent in lawful custody in a case where the applicant had been in custody during the trial.
7. As was stated by the High Court of Malaysia in Public Prosecutor vs Muhari bin Mohd Jani and Another [1996] 4 LRC 728 at 734, 735:“...The object of revisionary powers of the High Court is to confer upon the High Court a kind of “paternal or supervisory jurisdiction” in order to correct or prevent a miscarriage of justice. In a revision the main question to be considered is whether substantial justice has been done or will be done and whether any order made by the lower court should be interfered with in the interest of justice…”
8. I note that the trial court while sentencing the applicant stated that the applicant had spent five months in lawful custody and that he was remorseful. But after that, he did not state when the sentence was to begin and whether the sentence had taken into account that period.
9. From the charge sheet, the applicant herein was arrested on 26. 08. 2022 and thereafter sentenced on 14. 03. 2023.
10. Therefore, the 6 months 2weeks and 2 days the applicant spent in custody shall be considered when computing the sentence..
DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 7TH DAY OF NOVEMBER 2024J. N. ONYIEGOJUDGE