[2021] KEHC 4884 (KLR)
The court found that the trial court erred by not factoring in the four months the applicant spent in remand custody during trial, as required by section 333(2) of the Criminal Procedure Code. The High Court held that the applicant was entitled to have his ten-year sentence reduced by the period already served in...
Source-derived case information.
- Citation
- [2021] KEHC 4884 (KLR)
- Parties
- Applicant: Julius Maingi Muinde; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Makueni
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 65 of 2019
- Procedural Posture
- Miscellaneous Application / Sentence Review Application Under Section 333(2) of the Criminal Procedure Code
- Outcome
- Application allowed. Sentence reviewed.
- Judges
- GMA Dulu
- Legal Topics
- Sentence Review, Remand Period Credit, Criminal Procedure Code Section 333 2
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julius Maingi Muinde
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Sentence Review Application Under Section 333(2) of the Criminal Procedure Code
Legal Issues
- 1 Whether the applicant is entitled to have the period spent in remand custody during trial deducted from his sentence as per section 333(2) of the Criminal Procedure Code.
Ratio Decidendi
The court found that the trial court erred by not factoring in the four months the applicant spent in remand custody during trial, as required by section 333(2) of the Criminal Procedure Code. The High Court held that the applicant was entitled to have his ten-year sentence reduced by the period already served in custody before sentencing. The court relied on the statutory mandate that requires courts to consider time spent in custody when computing sentences, and found no reason to refuse the application since the respondent did not oppose it and the Probation Officer's report was favourable. Accordingly, the applicant's sentence was reduced by four months, resulting in a new sentence of...
Court Disposition
Application allowed. Sentence reviewed.
Orders
- The applicant's prison sentence of 10 years imprisonment is reduced by four (4) months to account for time spent in custody during trial.
- The applicant's sentence is now 9 years and 8 months.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MAKUENI
HC. MISC. CR. APPLICATION NO. 65 OF 2019
IN THE MATTER OF SECTION 333(2) OF THE CRIMINAL PROCEDURE CODE
JULIUS MAINGI MUINDE........APPLICANT
-VERSUS-
REPUBLIC............................RESPONDENT
RULING
1. Before me is a Notice of Motion filed by the applicant on 11th December 2019, seeking that his sentence be reviewed pursuant to section 333(2) of the Criminal Procedure Code (cap.75).
2. The application was filed with a supporting affidavit, in which the applicant deponed that in a judgment in Tawa SRM Sexual Offence No. 6 of 2017 passed on 4/7/2017, he was imprisoned for ten (10) years for attempted defilement.
3. The applicant has through this application urged this court to factor the period he was in remand during trial, in the prison sentence as provided for under section 333(2) of the Criminal Procedure Code.
4. In pursuit of his application, the applicant filed written submissions. On their part, the Director of Public Prosecutions through Senior Principal Prosecuting Counsel Ms. Gakumu did not oppose the request of the applicant for the sentence review to take into account the 4 months period the applicant was in custody during the trial. Ms. Gakumu further informed the courtthat the applicant had even withdrawn his appeal to pursue the present application.
5. I have considered the matter and note that this court has also been availed a Probation Officer’s report filed by S.M Munyasya dated 23/3/2021, which has favourable recommendations with regard to sentence.
6. Section 333(2) of the Criminal Procedure Code (cap.75) contains the following provisal –
“Provided that where the person sentenced under section (1) has prior to sentence been held in custody, the sentence shall take into account the period spent in custody.
7. On my part, I find no reason to refuse the request of the applicant to review the sentence, as the trial court did not factor the period in custody in sentencing as required under section 333(2) of the Criminal Procedure Code (cap 75). The applicant was in custody for 4 months during trial and the trial court should have considered the 4 months in computing the sentence. I thus order that the applicant’s prison sentence of 10 years imprisonment, be and is hereby reduced by the four (4) months he was in custody. The applicant’s sentence is thus 9 years and 8 months. It is so ordered.
DELIVERED, SIGNED & DATED THIS 28TH DAY OF JULY, 2021, IN OPEN COURT AT MAKUENI.
................................
GEORGE DULU
JUDGE