[2021] KEHC 3079 (KLR)
The court found that the trial court had already considered the period the applicant spent in custody, as reflected in the reduced sentence of ten years imprisonment for an offence that carries a statutory minimum of fifteen years. The court further held that the power to reduce a sentence by one third lies with the...
Source-derived case information.
- Citation
- [2021] KEHC 3079 (KLR)
- Parties
- Applicant: Isaac Juma; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E314 of 2021
- Procedural Posture
- Criminal Revision / Ruling on Application for Review of Sentence
- Outcome
- application dismissed
- Judges
- LN Mutende
- Legal Topics
- Sentencing Review, Time Spent in Custody, Defilement Offence, Sentence Reduction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Isaac Juma
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Review of Sentence
Legal Issues
- 1 Whether the trial court failed to consider the period the applicant spent in custody when passing sentence.
- 2 Whether the applicant is entitled to a reduction of sentence by one third under the law.
Ratio Decidendi
The court found that the trial court had already considered the period the applicant spent in custody, as reflected in the reduced sentence of ten years imprisonment for an offence that carries a statutory minimum of fifteen years. The court further held that the power to reduce a sentence by one third lies with the Commissioner of Prisons under Section 46 of the Prisons Act, not with the court. Therefore, the application for further reduction of sentence was unmeritorious and was dismissed.
Court Disposition
application dismissed
Orders
- The application for review of sentence is dismissed.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CRIMINAL DIVISION- MILIMANI COURT
CRIMINAL REVISION NO. E314 OF 2021
ISAAC JUMA.....................................................................................APPLICANT
VERSES
REPUBLIC...................................................................................RESPONDENT
RULING
1. Isaac Juma, the Applicant approached this court through a Notice of Motion seeking review of sentence.
2. The application is supported by an affidavit deponed by the applicant where he avers that; he was sentenced to serve ten (10) years imprisonment; the trial court did not take into consideration the period of 2 years and 7 months that he spent in custody; the sentence be reduced by 1/3; he is remorseful, a first offender and sole bread winner of his family;he is an orphan and that, his family is suffering both psychologically and financially because of the continued incarceration.
3. The Application is opposed. The State/Respondent through Ms. Chege learned counsel, urged that having been charged with the offence of defilement contrary to Section 8(4) of the Sexual Offences Act and was sentenced to ten (10) years imprisonment, the court took into account time spent in custody as the sentence provided for the offence is fifteen (15) years imprisonment.
4. I have considered what transpired at trial. Section 333(2) ofthe Criminal Procedure Code provides thus:
“(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.”
5. In the case of Ahamad Abolfathi Mohamed & Another Vs. Republic (2018) eKLRthe court stated that:
“By dint of section 333(2) of the Criminal Procedure Code, the court was obliged to take into account the period that they had spent in custody before they were sentenced. Although the learned judge stated that he had taken into account the period the appellants had been in custody, he ordered that their sentence shall take effect from the date of their conviction by the trial court. With respect, there is no evidence that the court took into account the period already spent by the appellants in custody. “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.”
It is a requirement for the court to consider time spent in custody.”
6. Section 8(4) of the Sexual Offences Act provides thus:
1. “A person who commits an offence of defilementwith a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.”
7. In meting out the sentence the trial court state as follows:
“I have taken into account the time Accused has been in custody and the fact that he is a first offender. Accused is sentenced to ten (10) years imprisonment.”
8. It is therefore apparent that the court took into account time spent in custody.
9. With regard to the issue of reduction of sentence by 1/3, this is power bestowed up the Commissioner of Prison by Statute/Vide Section 46 of the prison Act, Cap 90(k) and in order for a prisoner to benefit, he should be of good conduct and industrious.
10. The upshot of the above is that the application isunmeritorious. Accordingly, it is dismissed.
11. It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY, THIS 7TH DAY OF OCTOBER, 2021
L. N. MUTENDE
JUDGE
IN THE PRESENCE OF:
Applicant
Ms. Chege for Respondent
Court Assistant -Mutai