[2023] KEHC 23158 (KLR)
The High Court found that the trial court failed to consider the period the applicant spent in custody prior to conviction, as required by section 333(2) of the Criminal Procedure Code. The court exercised its revisionary jurisdiction under sections 362 and 364 of the Criminal Procedure Code to rectify this...
Source-derived case information.
- Citation
- [2023] KEHC 23158 (KLR)
- Parties
- Applicant: Peter Ndungu Kairu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kiambu
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E460 of 2023
- Procedural Posture
- Criminal Revision / Ruling
- Outcome
- application allowed
- Judges
- PM Mulwa
- Legal Topics
- Sentencing, Pre Conviction Custody, Robbery With Violence, Revision Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Ndungu Kairu
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling
Legal Issues
- 1 Whether the trial court erred by failing to consider the period spent in pre-conviction custody when sentencing the applicant.
- 2 Whether the applicant is entitled to have the sentence computed from the date of arrest under section 333(2) of the Criminal Procedure Code.
Ratio Decidendi
The High Court found that the trial court failed to consider the period the applicant spent in custody prior to conviction, as required by section 333(2) of the Criminal Procedure Code. The court exercised its revisionary jurisdiction under sections 362 and 364 of the Criminal Procedure Code to rectify this omission. The court ordered that the applicant's sentence of 10 years imprisonment should be computed from the date of his arrest, May 29, 2019, thereby ensuring compliance with the statutory requirement and preventing excessive punishment.
Court Disposition
application allowed
Orders
- The sentence of 10 years imprisonment shall run from the date of arrest, May 29, 2019.
Full Case Text
Judgment text and source record
22 paragraphs
Kairu v Republic (Criminal Revision E460 of 2023) [2023] KEHC 23158 (KLR) (5 October 2023) (Ruling)
Neutral citation: [2023] KEHC 23158 (KLR)
Republic of Kenya
In the High Court at Kiambu
Criminal Revision E460 of 2023
PM Mulwa, J
October 5, 2023
Between
Peter Ndungu Kairu
Applicant
and
Republic
Respondent
Ruling
1. The applicant herein Peter Ndungu Kairu by his Notice of Motion application pleads with the court to consider the period spent in custody pre-conviction period. He states he was arrested on May 29, 2019 and was convicted on March 11, 2021, and subsequently sentenced to 10 years imprisonment.
2. He was charged with robbery with violence, contrary to section 296(2) of the Penal code. The particulars are that on April 20, 2019, at Githurai Kimbo in Ruiru Sub- County within Kiambu jointly with others not before the court using motor vehicle no KAR 055J make Toyota Shark a matatu white in colour, while armed with knives robbed Samwel Muturi Mburu his mobile phone make Samsung valued at Kshs 18,000/=, memory card valued at Kshs 2,000/= and Kshs 109,000/= and immediately before the time of such robbery threatened to use actual violence to the said Samwel Muturi Mburu.
3. From the face of the application and the nature of the prayers sought therein, it is clear that the same was filed pursuant to the provisions of section 333(2) of the Criminal Procedure Code. The said section provides that: -“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.”
4. The Judiciary Sentencing Policy Guidelines & Directions provides that the proviso to Section 333(2) of the Criminal Procedure Code obligates courts 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 excessive punishment that is not proportional to the offence committed.
5. The applicant was arrested on May 29, 2019, convicted on March 11, 2021 and subsequently sentenced to 10 years imprisonment. From the record, the trial court did not take into consideration the time spent in custody before conviction.
6. This court will exercise its revisionary jurisdiction under Sections 362 and 364 of the Criminal Procedure Code and take into consideration the time spent in custody pre-conviction.
7. It is the finding of this court that the sentence of 10 years will run from the time of his arrest on May 27, 2019. It is so ordered
RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT KIAMBU THIS 5TH DAY OF OCTOBER 2023. ........................P.M. MULWAJUDGEIn the presence of:Kinyua/ Duale – Court assistantsApplicant in person – present virtually from KamitiMr. Gacharia – for the Respondent