[2024] KEHC 12422 (KLR)
The court found that the trial court failed to comply with Section 333(2) of the Criminal Procedure Code, which requires that the period spent in custody prior to sentencing be taken into account. As a result, the High Court ordered that the applicant's fifteen-year sentence should be computed from the date of his...
Source-derived case information.
- Citation
- [2024] KEHC 12422 (KLR)
- Parties
- Applicant: Geoffrey Korir; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E147 of 2021
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Re Sentencing Under Section 333(2) of the Criminal Procedure Code
- Outcome
- application for re-sentencing allowed; sentence to run from date of arrest with adjustment for time out on bond
- Judges
- JM Nang'ea
- Legal Topics
- Defilement, Sentencing Principles, Resentencing, Sexual Offences Act, Time Spent in Custody
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Geoffrey Korir
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Re Sentencing Under Section 333(2) of the Criminal Procedure Code
Legal Issues
- 1 Whether the applicant is entitled to have the period spent in custody prior to sentencing taken into account under Section 333(2) of the Criminal Procedure Code.
- 2 Whether the original sentencing court complied with the statutory requirement to consider pre-sentence custody.
Ratio Decidendi
The court found that the trial court failed to comply with Section 333(2) of the Criminal Procedure Code, which requires that the period spent in custody prior to sentencing be taken into account. As a result, the High Court ordered that the applicant's fifteen-year sentence should be computed from the date of his arrest, with an adjustment for the period he was out on bond. This ensures compliance with statutory requirements and upholds the principle that an accused should not serve more time than prescribed by law due to oversight in accounting for pre-sentence custody.
Court Disposition
application for re-sentencing allowed; sentence to run from date of arrest with adjustment for time out on bond
Orders
- The applicant's fifteen-year prison sentence shall be computed from the date of his arrest on 1/3/2016.
- The Officer in Charge of prison shall take into account that the applicant was out on bond between 10/1/2017 and 7/2/2017.
Full Case Text
Judgment text and source record
22 paragraphs
Korir v Republic (Miscellaneous Criminal Application E147 of 2021) [2024] KEHC 12422 (KLR) (17 October 2024) (Ruling)
Neutral citation: [2024] KEHC 12422 (KLR)
Republic of Kenya
In the High Court at Nakuru
Miscellaneous Criminal Application E147 of 2021
JM Nang'ea, J
October 17, 2024
Between
Geoffrey Korir
Applicant
and
Republic
Respondent
Ruling
1. The Applicant was on 13/3/2018 convicted in the Chief Magistrate’s Court at Molo (Hon. Rita Amwayi – RM) of the offence of Defilement Contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act No. 3 of 2006 in Criminal Case No. 633 of 2016. In mitigation for sentencing he told the court that he was providing for his six (6) siblings since his mother was ailing. The Applicant therefore urged the court for leniency.
2. The prosecutor (Ms Ndegwa) noted that the victim (FC) was 17. She advocated for a severe sentence as provided for in Section 8(4) of the above stated statute.
3. The learned trial magistrate agreed with the prosecuting Counsel and sentenced the Applicant to fifteen (15) years imprisonment which is the minimum sentence prescribed by law.
4. The Applicant preferred an appeal to this court, vide Criminal Appeal No. 29 of 2017 against both conviction and sentence. The record of these proceedings indicates that the appeal was subsequently withdrawn and this application seeking the Applicant’s re-sentencing before this court was brought instead. In particular, I am urged to invoke Section 333 of the Criminal Procedure Code.
5. Section 333 (2) of the Criminal Procedure Code in its proviso:“where a person sentenced under Sub Section (1), has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.”
6. The trial court’s record does not show that this statutory provision was complied wth. In the result, it is ordered that the fifteen (15) - year prison sentence meted out against the applicant will be effected from the date of his arrest on 1/3/2016. The Officer in Charge of prison will, however, take into account that the applicant was briefly out on bond between 10/1/2017 and 7/2/2017 on which latter date his surety withdrew.
7. Ruling accordingly.
J. M. NANG’EAJUDGERULING DELIVERED THIS 17TH DAY OF OCTOBER 2024 IN THE PRESENCE OF:The state,The Applicant, presentThe Court Assistant, JenniferJ. M. NANG’EAJUDGE