[2020] KEHC 4239 (KLR)
The court found that the trial court failed to consider the period the applicant spent in custody pending trial, as required by section 333(2) of the Criminal Procedure Code. The record did not indicate that the remand period was accounted for during sentencing. The court held that this period—1 year and 9...
Source-derived case information.
- Citation
- [2020] KEHC 4239 (KLR)
- Parties
- Applicant: KM; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 279 of 2019
- Procedural Posture
- Criminal Revision / Ruling on Application for Sentence Review
- Outcome
- application allowed
- Judges
- DO Ogembo
- Legal Topics
- Sentencing Review, Remand Period Credit, Incest Offence, Sexual Offences Act, Custodial Sentence, Criminal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
KM
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Sentence Review
Legal Issues
- 1 Whether the period the applicant spent in custody pending trial should be considered and deducted from his sentence.
- 2 Whether the trial court erred by not accounting for the remand period during sentencing.
Ratio Decidendi
The court found that the trial court failed to consider the period the applicant spent in custody pending trial, as required by section 333(2) of the Criminal Procedure Code. The record did not indicate that the remand period was accounted for during sentencing. The court held that this period—1 year and 9 months—must be deducted from the 10-year sentence imposed for the offence of incest. The application was therefore allowed, and the sentence ordered to be recalculated to reflect the time already served in remand.
Court Disposition
application allowed
Orders
- The period of 1 year and 9 months spent in custody by the applicant pending trial shall be considered and deducted from the 10-year sentence imposed.
- The sentence is to be recalculated to account for the remand period.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CRIMINAL REVISION CASE NO. 279 OF 2019
KM..........................APPLICANT
VERSUS
REPUBLIC.......RESPONDENT
RULING
The applicant KM, has filed this application on 24. 10. 2019 seeking that his sentence be reviewed so that the period he spent in custody pending his trial be considered. That the period amounts to 1 year and 9 months. In opposing the same the counsel for the prosecution submitted that the applicant was sentenced to 10 years on 9. 7.2018 for the offence of incest.
That in deciding this application, the court ought to consider the proceedings to determine if indeed the said remand period was not considered. Counsel urged that this application be dismissed so that the applicant may continue with his rehabilitation.
I have considered the submissions of the 2 rival sides. This is an Application brought under section 333(2) of the Criminal Procedure Code. Indeed this section dictates that in sentencing, the period that the accused spends in custody awaiting determination of his trial ought to be considered. Thus;
Section 333(2)
“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.”
From the record, the accused was arraigned in court in Milimani Criminal Case Number 1911/2016 on 25. 11. 2016, and charged with the offence of incest contrary to section 20(1) of the Sexual Offences Act, No. 3/2016. He faced an alternative charge of indecent act with a child contrary to section 11(1) of the Sexual Offences Act, No. 3/2006. Both of these offences, on conviction attract sentences of not less than 10 years’ imprisonment.
The proceedings before the trial court on 9. 7.2018 do not show that the period the applicant spent in custody was considered by the court during the sentencing hearing. It ought to have been considered. I accordingly therefore allow the applicants application filed herein on 24. 10. 2019 and order that the period he spent in custody awaiting determination of his case of 1 year, 9 months be considered and accounted for in the sentence meted out against him of 10 years’ imprisonment. Orders accordingly.
D. O. OGEMBO
JUDGE
10. 7.2020
Court:
Ruling read out in open court in presence of the applicant (Zoom) and Mr. Mutuma for the state.
D. O. OGEMBO
JUDGE
10. 7.2020