[2024] KEHC 3577 (KLR)
The court found that the trial magistrate did not indicate whether the period spent in custody was considered when sentencing the petitioner. Section 333(2) of the Criminal Procedure Code mandates that any period spent in custody prior to sentencing must be taken into account. The petitioner was in custody from 23rd...
Source-derived case information.
- Citation
- [2024] KEHC 3577 (KLR)
- Parties
- Applicant: Ibrahim Hassan; Respondent: ODPP
- Court
- High Court
- Court Station
- High Court at Marsabit
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition E001 of 2024
- Procedural Posture
- Criminal Petition / Ruling on Petition for Consideration of Pre Sentence Custody Period
- Outcome
- petition allowed
- Judges
- JN Njagi
- Legal Topics
- Sentencing, Pre Sentence Custody, Sexual Offences, Criminal Procedure Code Section 333 2
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ibrahim Hassan
Applicant
ODPP
Respondent
Procedural Posture
Criminal Petition / Ruling on Petition for Consideration of Pre Sentence Custody Period
Legal Issues
- 1 Whether the period spent in custody prior to sentencing should be included as part of the sentence imposed on the petitioner.
- 2 Whether the trial magistrate considered the period spent in custody as required by section 333(2) of the Criminal Procedure Code.
Ratio Decidendi
The court found that the trial magistrate did not indicate whether the period spent in custody was considered when sentencing the petitioner. Section 333(2) of the Criminal Procedure Code mandates that any period spent in custody prior to sentencing must be taken into account. The petitioner was in custody from 23rd October 2021 until sentencing on 28th February 2022, a period of four months. The court held that the sentence of ten years imprisonment should be deemed to have commenced from the date of arrest, 23rd October 2021, thereby giving effect to the statutory requirement and ensuring the petitioner receives credit for time already served.
Court Disposition
petition allowed
Orders
- The sentence imposed on the petitioner shall commence from the date of his arrest, 23rd October 2021.
- Right of appeal within 30 days.
Full Case Text
Judgment text and source record
20 paragraphs
Hassan v ODPP (Criminal Petition E001 of 2024) [2024] KEHC 3577 (KLR) (6 March 2024) (Ruling)
Neutral citation: [2024] KEHC 3577 (KLR)
Republic of Kenya
In the High Court at Marsabit
Criminal Petition E001 of 2024
JN Njagi, J
March 6, 2024
Between
Ibrahim Hassan
Petitioner
and
Odpp
Respondent
Ruling
1. The petitioner herein has filed a petition dated 9th January seeking that the period spent in custody while undergoing trial be included as part of the sentence of ten years` imprisonment imposed on him and that the same commences from the date of arrest.
2. The petition is based on the grounds that the petitioner was arrested on 23rd October, 2021 and charged with the offence of committing an indecent act contrary to section 11(1) of the Sexual Offences Act No.3 of 2006. He was tried of the offence, convicted and sentenced to serve 10 years imprisonment. His appeal to the High Court was unsuccessful. The petitioner has now brought up the instant petition under the provisions of section 333(2) of the Criminal Procedure Code which provides that where a person has been in custody prior to being sentenced, the sentence shall take account of the period spent in custody. The petitioner relied on the case of Abolfathi Mohamed & another v Republic (2018) eKLR to support the provisions of the afore mentioned section.
3. I have perused the judgment of the trial magistrate. The magistrate did not state whether he had considered the period spent in custody when he sentenced the Petitioner. The petition is thus merited.
4. According to the record of the trial court, the Petitioner was arrested on the 23rd October, 2021, arraigned in court on 23rd October 2021 and sentenced on 28 February 2022. He was in custody throughout the trial which is a period of 4 months. The law as provided under section 333(2) of the Criminal Procedure Code is that the period spent in custody awaiting trial should be considered when sentencing an accused person. I have considered the period spent in custody and order that the sentence imposed on the Petitioner commences from the date of his arrest, that is on 23rd October, 2021.
Order Accordingly.
DELIVERED, DATED AND SIGNED AT MARSABIT THIS 6TH MARCH, 2024. J.N. NJAGIJUDGEIn the presence of:Mr. Otieno for RespondentPetitioner – Appearing in person – virtually from Meru G.K Prison MeruCourt Assistant – Jarso30days Right of Appeal.