[2024] KEHC 12100 (KLR)
The court found that both the trial and appellate courts failed to consider the period of 2 years and 5 months the applicant spent in remand custody before conviction, as required by section 333(2) of the Criminal Procedure Code. This omission was a violation of a mandatory legal obligation. The court held that the...
Source-derived case information.
- Citation
- [2024] KEHC 12100 (KLR)
- Parties
- Applicant: Peter Mwangi Kuria; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kibera
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal E021 of 2023
- Procedural Posture
- Criminal Appeal / Ruling on Sentence Revision
- Outcome
- Application allowed. Sentence of imprisonment to run from date of arrest.
- Judges
- DR Kavedza
- Legal Topics
- Sentencing Revision, Remand Custody Credit, Narcotic Offences, Mandatory Sentencing, Appeal on Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Mwangi Kuria
Applicant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Sentence Revision
Legal Issues
- 1 Whether the trial and appellate courts failed to consider the period spent in remand custody when sentencing the applicant.
- 2 Whether the applicant is entitled to have his sentence revised to account for time spent in custody under section 333(2) of the Criminal Procedure Code.
Ratio Decidendi
The court found that both the trial and appellate courts failed to consider the period of 2 years and 5 months the applicant spent in remand custody before conviction, as required by section 333(2) of the Criminal Procedure Code. This omission was a violation of a mandatory legal obligation. The court held that the sentence of ten years imprisonment should run from the date of arrest, 30th August 2020, thereby crediting the applicant for time already served in custody. The fine and default sentence remain unchanged. The application for sentence revision was therefore allowed to the extent of backdating the custodial sentence to the date of arrest.
Court Disposition
Application allowed. Sentence of imprisonment to run from date of arrest.
Orders
- The sentence of ten (10) years imprisonment and the fine of Kshs. 20,790,000 in default to serve 12 months imprisonment shall run from 30th August 2020, the date of the applicant’s arrest.
Full Case Text
Judgment text and source record
23 paragraphs
Kuria v Republic (Criminal Appeal E021 of 2023) [2024] KEHC 12100 (KLR) (8 October 2024) (Ruling)
Neutral citation: [2024] KEHC 12100 (KLR)
Republic of Kenya
In the High Court at Kibera
Criminal Appeal E021 of 2023
DR Kavedza, J
October 8, 2024
Between
Peter Mwangi Kuria
Applicant
and
Republic
Respondent
Ruling
1. The applicant was charged and convicted for the offence of trafficking in narcotic drugs contrary to section 4(a) of the Narcotics and Pyschotropic Substances (Control)Act No. 4 of 1994. He was sentenced to serve 25 years imprisonment. In addition, he was fined Kshs. 20,790,000 in default to serve 12 months imprisonment. He appeal against conviction was dismissed on 7th May 2024, but was partially allowed on sentence. This court substituted the 25 years imprisonment with a sentence of ten(10) years to run from the date of conviction.
2. He has filed the present notice of motion dated 22nd May 2024 seeking a revision of sentence. The arguments raised are that the trial court and this court failed to consider the time spent in reman custody during the computation of sentence under the provision of section 333(2) of the Criminal Procedure Code, Cap 75 of the Laws of Kenya. In addition, he is remorseful and has been rehabilitated since his incarceration. He prayed for a non-custodial sentence in consideration of his advanced age.
3. I have considered the application, the affidavit in support and the applicable law. I have also considered the trial court record. The issue for consideration is whether the trial court considered the time the applicant spent in remand custody.
4. The proviso to section 333(2) of the Criminal Procedure Code obligates the court to consider the time already spent in custody. The duty to take in account the period an accused person had remained in custody in sentencing under the proviso to section 333(2) of the Criminal Procedure Code which is couched in mandatory terms was acknowledged by the Court of Appeal in Ahamad Abolfathi Mohammed & Another vs. Republic [2018] eKLR and Bethwel Wilson Kibor vs. Republic [2009] eKLR and more recently in the High Court case of Vincent Sila Jona & 87 others vs Kenya Prison Service & 2 others [2021] eKLR.
5. It is therefore clear that it is mandatory that the period which an accused has been held in custody prior to being sentenced be considered in meting out the sentence where it is not hindered by other provisions of the law.
6. From the record of the court, the applicant was arrested on 30th August 2020 and was never released on bail/bond. He was convicted by the trial court on 21st February 2023. He, therefore, spent 2 years and 5 months in remand custody. From the record, it is clear that the period was not factored in during his sentencing by this court and the trial court. Guided by the law, the court is of the view that the application ought to be considered, as failure to do so would amount to denying the applicant a right due to the failure of the court to discharge an obligation bestowed upon it by law.
7. I thus allow the application. The sentence of ten (10) years imprisonment in addition to the fine imposed of 20,790,000 in default to serve 12 months imprisonment shall run from 30th August 2020, the date of the applicant’s arrest pursuant to section 333(2) of the Criminal Procedure Code.
Orders accordingly.
RULING DATED AND DELIVERED VIRTUALLY THIS 8THOCTOBER 2024D. KAVEDZAJUDGE