[2021] KEHC 2291 (KLR)
The court found that the trial magistrate failed to consider the four months the applicant spent in custody prior to sentencing, as required by Section 333(2) of the Criminal Procedure Code and the Judiciary Sentencing Guidelines. Sentencing is discretionary, but the law mandates that time spent in custody must be...
Source-derived case information.
- Citation
- [2021] KEHC 2291 (KLR)
- Parties
- Applicant: Hussein Hassan Mohamed; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application E010 of 2020
- Procedural Posture
- Criminal Miscellaneous Application / Ruling on Sentence Revision
- Outcome
- sentence revised
- Judges
- A Ali-Aroni
- Legal Topics
- Sentencing Principles, Time Spent in Custody, Assault Causing Actual Bodily Harm
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hussein Hassan Mohamed
Applicant
Republic
Respondent
Procedural Posture
Criminal Miscellaneous Application / Ruling on Sentence Revision
Legal Issues
- 1 Whether the trial court erred by failing to consider the period the applicant spent in custody before sentencing.
- 2 Whether the sentence imposed was excessive in light of Section 333(2) of the Criminal Procedure Code.
Ratio Decidendi
The court found that the trial magistrate failed to consider the four months the applicant spent in custody prior to sentencing, as required by Section 333(2) of the Criminal Procedure Code and the Judiciary Sentencing Guidelines. Sentencing is discretionary, but the law mandates that time spent in custody must be factored into the final sentence to avoid excessive punishment. Since there was no indication in the judgment that this period was considered, the court set aside the original five-year sentence and substituted it with a sentence of four years and six months, reflecting the period already served in custody. The court emphasized that, as this was not an appeal, its intervention...
Court Disposition
sentence revised
Orders
- The five-year jail term is set aside.
- The applicant is sentenced to four years and six months imprisonment.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT GARISSA
HCCRMISC APPLICATION NO. E010 OF 2020
HUSSEIN HASSAN MOHAMED......APPLICANT
VERSUS
REPUBLIC.......................................RESPONDENT
RULING
1. Hussein Hassan Mohamedwas on the 5th of November 2019 before the Principal Magistrate’s Court to answer for a case of assault causing actual bodily harm contrary to Section 251 of the Penal Code.
2. The prosecution case was that on 28th day of October 2019 at Wajir township the Applicant assaulted his own father Hassan Mohamud Sheikh who was then frail and sickly causing him bodily injury.
3. The Applicant pleaded not guilty and the matter proceeded to full trial. He was convicted of the offence and before sentencing the Court called for a pre-sentencing report. The report stated inter alia, that the Applicant abused alcohol and drugs and had served a sentence for a similar offence.
4. The court sentenced the Applicant to a period of 5 years. The trial took a period of 4 months where the Applicant was in custody.
5. Section 333(2) of the Criminal Procedure Code provides
“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 for in this Code. Provided that where thee 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 Judiciary Sentencing Guidelinesemphasize the principle further on the following terms;
“The proviso to Section 333(2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody if the convicted person had been in custody during the trial. Failure to do so impacts on the overall period of detention which may result in an excessive punishment that is not proportionate to the offence committed. In determining the period of imprisonment that should be served by an offender, the court must take into account the period in which the offender was held in custody during trial.”
7. Sentencing is discretionary and as the court arrives at a sentence, however, it is a requirement that the time spent in custody be taken into account.
There is no indication in the Judgement that the trial court considered the 4 months the Applicant spent in custody.
8. As a consequence, the 5-year jail term is set aside and in its place the Applicant is jailed for 4 years 6 months. That is the best this court can do in the circumstances bearing in mind that the matter before this court is not an appeal and therefore some aspects of the application must fail.
DATED, DELIVERED AND SIGNED AT GARISSA THIS 11TH DAY OF NOVEMBER, 2021
……………….………………
ALI-ARONI
JUDGE