[2024] KEHC 9122 (KLR)
The court found that the trial court failed to specifically deduct the four years and one month the applicant spent in remand custody from the twenty-year sentence imposed for robbery with violence. Section 333(2) of the Criminal Procedure Code imposes a mandatory obligation on sentencing courts to account for time...
Source-derived case information.
- Citation
- [2024] KEHC 9122 (KLR)
- Parties
- Applicant: Marjan Juma Hamisi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kibera
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal E018 of 2024
- Procedural Posture
- Criminal Appeal / Ruling on Sentence Revision
- Outcome
- application allowed
- Judges
- DR Kavedza
- Legal Topics
- Sentencing Principles, Remand Custody Credit, Revision of Sentence, Robbery With Violence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Marjan Juma Hamisi
Applicant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Sentence Revision
Legal Issues
- 1 Whether the trial court failed to consider the period the applicant spent in remand custody when computing sentence as required by section 333(2) of the Criminal Procedure Code.
- 2 Whether the applicant is entitled to have his sentence revised to account for time spent in remand custody.
Ratio Decidendi
The court found that the trial court failed to specifically deduct the four years and one month the applicant spent in remand custody from the twenty-year sentence imposed for robbery with violence. Section 333(2) of the Criminal Procedure Code imposes a mandatory obligation on sentencing courts to account for time spent in custody. The appellate court, guided by binding precedent, held that a mere statement that custody time was considered is insufficient unless the sentence is expressly reduced by the actual period. The failure to do so amounts to a denial of a statutory right. Accordingly, the High Court revised the sentence to deduct the period spent in remand custody, ensuring...
Court Disposition
application allowed
Orders
- The sentence of twenty (20) years imprisonment on each count shall be computed less by four (4) years and one (1) month and shall run from the date of conviction.
Full Case Text
Judgment text and source record
24 paragraphs
Hamisi v Republic (Criminal Appeal E018 of 2024) [2024] KEHC 9122 (KLR) (30 July 2024) (Ruling)
Neutral citation: [2024] KEHC 9122 (KLR)
Republic of Kenya
In the High Court at Kibera
Criminal Appeal E018 of 2024
DR Kavedza, J
July 30, 2024
Between
Marjan Juma Hamisi
Applicant
and
Republic
Respondent
Ruling
1. The applicant was charged with seven counts of robbery with violence contrary to section 295 as read with 296(2) of the Penal Code. After a full trial, he was convicted and sentenced to 20 years on each of the counts to run concurrently from the date of conviction.
2. He has now filed an application seeking revision of sentence. He filed an affidavit in support of his motion. The arguments raised are that the trial court failed to consider the time she spent in remand custody during the computation of sentence under the provision of section 333(2) of the Criminal Procedure Code, Cap 75 of the Laws of Kenya.
3. I have considered the application, the affidavit in support and the applicable law. I have also considered the trial court record. The issue for consideration is whether the trial court considered the time the applicant spent in remand custody.
4. The proviso to section 333(2) of the Criminal Procedure Code obligates the court to consider the time already spent in custody during sentencing. The court has a duty to take into account the period an accused person had remained in custody during sentencing under the proviso to section 333(2) of the Criminal Procedure Code which is couched in mandatory terms. This was acknowledged by the Court of Appeal in Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR and Bethwel Wilson Kibor v Republic [2009] eKLR and more recently in the High Court case of Vincent Sila Jona & 87 others v Kenya Prison Service & 2 others [2021] eKLR.
5. It is therefore clear that it is mandatory that the period which an accused has been held in custody prior to being sentenced be considered in meting out the sentence where it is not hindered by other provisions of the law.
6. From the record, the applicant was arrested on 8th October 2014. He was arraigned in court for take plea and was never released on bail during the entirety of his trial. He was convicted on 6th November 2018. He, therefore, spent four (4) years and one (1) month in remand custody. From the record, it is clear that the period was not factored in during his sentencing by the trial court.
7. In Ahmed Abolfathi Mohamed v Republic [2018] eKLR the Court of Appeal held as follows;“Taking into account” the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody. It is not enough for the court to merely state that it has taken into account the period already spent in custody and still order the sentence to run from the date of the conviction because that amounts to ignoring altogether the period already spent in custody. It must be remembered that the proviso to Section 333(2) of the Criminal Procedure Code was introduced in 2007 to give the court power to include the period already spent in custody in the sentence that it metes out to the accused person. We find that the first appellate court misdirected itself in that respect and should have directed the appellant’s sentence of imprisonment to run from the date of arrest on 19th June 2012. ” (emphasis mine)
8. Although the trial court, indicated that the said period had been considered, the court was not specific on what amount of time was considered. Guided by the law, the court is of the view that the application ought to be considered, as failure to do so would amount to denying the applicant a right due to the failure of the court to discharge an obligation bestowed upon it by law.
9. I thus allow the application. In the premises, I make the following orders:i.The sentence of twenty (20) years imprisonment on each count shall be computed less by four (4) years and one (1) month and shall run from the date of conviction.Orders accordingly.
RULING DATED AND DELIVERED VIRTUALLY THIS 30TH DAY OF JULY 2024. ....................................D. KAVEDZAJUDGE