[2022] KEHC 13723 (KLR)
The High Court found that the trial court erred in law by failing to consider the applicant's pre-trial custody period as required by section 333(2) of the Criminal Procedure Code. The court held that the applicant's sentence should be revised to account for the three years and two months spent in pre-trial custody....
Source-derived case information.
- Citation
- [2022] KEHC 13723 (KLR)
- Parties
- Applicant: Japhetha Omanga Khabwe; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E018 of 2020
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Sentence
- Outcome
- application allowed; sentence revised
- Judges
- JM Bwonwong'a
- Legal Topics
- Sentencing Revision, Pre Trial Custody Credit, Grievous Harm, Penal Code Section 234
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Japhetha Omanga Khabwe
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the trial court erred in failing to consider the applicant's pre-trial custody period when sentencing.
- 2 Whether the applicant is entitled to a reduction of sentence under section 333(2) of the Criminal Procedure Code.
Ratio Decidendi
The High Court found that the trial court erred in law by failing to consider the applicant's pre-trial custody period as required by section 333(2) of the Criminal Procedure Code. The court held that the applicant's sentence should be revised to account for the three years and two months spent in pre-trial custody. Consequently, the sentence was reduced from eight years to four years and two months, to run from the date of conviction, January 25, 2019. The court exercised its revisionary jurisdiction to correct the illegality in the original sentence and ensure compliance with statutory requirements regarding pre-trial detention credit.
Court Disposition
application allowed; sentence revised
Orders
- The applicant's sentence is revised to four years and two months imprisonment, to run from January 25, 2019.
- The period of three years and two months spent in pre-trial custody shall be credited against the original sentence.
Full Case Text
Judgment text and source record
26 paragraphs
Khabwe v Republic (Criminal Revision E018 of 2020) [2022] KEHC 13723 (KLR) (Crim) (6 October 2022) (Ruling)
Neutral citation: [2022] KEHC 13723 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Criminal
Criminal Revision E018 of 2020
JM Bwonwong'a, J
October 6, 2022
Between
Japhetha Omanga Khabwe
Accused
and
Republic
Prosecutor
(Being an application for revision of the sentence of the Hon. F. Mutuku, SRM, delivered on 25/01/2019 in the Chief Magistrate’s Court at Kibera (Nairobi) in Criminal Case No.5027 of 2015, Republic versus Japheth Omanga Khabwe)
Ruling
The case for the accused/applicant 1. The applicant under certificate of urgency moved this court for revision of his sentence of eight (8) years imprisonment following his conviction for the offence causing grievous Kenya harm contrary to section 234 of the Penal Code (cap 63) laws of Kenya.
2. In his undated notice of motion, the applicant has requested the court to consider the period he had been in pre-trial remand custody of three years and two months.
3. Additionally, the applicant has also supported his application with a six-paragraphs supporting affidavit, in which he has deposed to the following major matters. First, he is a first offender. He was in pre-trial custody for three years and two months. He is remorseful. He is a family man and he is the sole bread winner of his family. He is currently suffering from psychological and financial problems and has therefore urged the court to impose a non-custodial sentence.
4. The applicant was charged in court on November 30, 2015 and was convicted for grievous harm on January 25, 2019. During this period, he was in custody, which translates to three years two months.
The case for the respondent 5. The respondent has conceded the application.
Issues for determination 6. I have considered the application and the applicable law. As a result, I find that the trial court erred in law in failing to consider the pre-trial custody period, which it was mandatorily required to consider under section 333 (2) of the Criminal Procedure Code (cap 75) laws of Kenya.
7. In view of the foregoing finding, I am entitled to interfere with the sentencing discretion of the trial court.
8. It therefore follows that the applicant should have been sentenced to 8 years less 3 years and two months, which translates to four years (4) and two months; which sentence is to run from the date of conviction namely on January 25, 2019.
9. In the premises, the application succeeds as shown in the foregoing paragraph.
RULING SIGNED, DATED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 6TH DAY OF OCTOBER 2022. J M BWONWONG’AJUDGEIn the presence of-Mr. Kinyua: Court AssistantThe accused/applicant in personMs Edna Ntabo for the Respondent