[2021] KEHC 2125 (KLR)
The court found that the applicant's re-sentencing to 10 years' imprisonment for robbery with violence was based on an erroneous interpretation of the Supreme Court's decision in Muruatetu, which only applies to mandatory sentences in murder cases. As such, the error in resentencing could not be used as a basis to...
Source-derived case information.
- Citation
- [2021] KEHC 2125 (KLR)
- Parties
- Applicant: Joseph Kinyua Mugo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kiambu
- Jurisdiction
- Kenya
- Case Number
- Criminal Case E238 of 2021
- Procedural Posture
- Criminal Revision / Ruling on Chamber Summons Application for Credit of Pre Sentence Custody Period
- Outcome
- application dismissed
- Judges
- MM Kasango
- Legal Topics
- Resentencing, Robbery With Violence, Mandatory Sentences, Pre Sentence Custody Credit, Supreme Court Guidelines
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Joseph Kinyua Mugo
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Chamber Summons Application for Credit of Pre Sentence Custody Period
Legal Issues
- 1 Whether the applicant is entitled to have the period spent in custody prior to re-sentencing credited to his sentence under Section 333(2) of the Criminal Procedure Code.
- 2 Whether the Supreme Court decision in Muruatetu applies to mandatory sentences for robbery with violence.
Ratio Decidendi
The court found that the applicant's re-sentencing to 10 years' imprisonment for robbery with violence was based on an erroneous interpretation of the Supreme Court's decision in Muruatetu, which only applies to mandatory sentences in murder cases. As such, the error in resentencing could not be used as a basis to grant the applicant the benefit of Section 333(2) of the Criminal Procedure Code. The court therefore dismissed the application for crediting the pre-sentence custody period, holding that the applicant was not entitled to such benefit due to the underlying error in the resentencing process.
Court Disposition
application dismissed
Orders
- The chamber summons filed on 13th August, 2021 is dismissed.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KIAMBU
CRIMINAL REVISION NO. E238 OF 2021
JOSEPH KINYUA MUGO..............................................................APPLICANT
VS.
REPUBLIC....................................................................................RESPONDENT
RULING
1. The applicant, JOSPEH KINYUA MUGO was arrested on 13th March, 2008 and charged before Thika Chief Magistrate’s Court with the offence of robbery with violence contrary to section 296(2) of the Penal Code. On 28th October, 2009, the applicant was convicted as charged and was sentenced to death.
2. The applicant petitioned the trial court for his re-sentencing following the Supreme Court’s decision in the case FRANCIS KARIOKO MURUATETU & ANOTHER VS. REPUBLIC & AOTHERS, Petition No. 15 & 16 (consolidated) of the 2015. The trial court, on hearing that petition re-sentenced the applicant to 10 years’ imprisonment.
3. The applicant has brought before this Court a chamber summons’s application. He seeks by that application for credit on his sentence be given to him for the period he was held in custody prior to his re-sentence. He has cited Section 333(2) of the Criminal Procedure Code which is in the following terms:-
“(2) Subject to the provisions of section 38 of the Penal Code 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.”
4. The resentencing of the applicant, as stated above was as a result of erroneous interpretation of the case of FRANCIS KARIOKO MURUATETU & ANOTHER VS. REPUBLIC NO. 15 OF 2015. This Supreme Court decision determined that mandatory sentence in murder cases was unconstitutional. Many court thereafter, in error, applied that principal to all cases where the sentence was mandatory and this led to the Supreme Court issuing directives to clearly state that its decision on mandatory sentence only applied in murder cases.
5. It will then be seen that the re-sentencing of the applicant of 10 years’ imprisonment, for the offence of robbery with violence, fell in error and that error cannot lead this Court to allow the applicant benefit from the provisions of Section 333(2) set out above.
DISPOSITION
6. For the reasons set out above, the chamber summons filed on 13th August, 2021 is dismissed.
RULING DATED AND DELIVERED AT KIAMBU THIS 18TH DAY OF NOVEMBER, 2021.
MARY KASANGO
JUDGE
Coram:
Court Assistant: Maurice
For the Applicants:
For the Respondent: Mr. Kasyoka
COURT
Ruling delivered virtually.
MARY KASANGO
JUDGE