[2024] KEHC 11512 (KLR)
The court found that the trial court failed to consider the period the applicant spent in remand custody from 13th February 2021 to 26th June 2024 when passing sentence, as required by section 333(2) of the Criminal Procedure Code. This omission was a violation of a mandatory statutory obligation. The court held...
Source-derived case information.
- Citation
- [2024] KEHC 11512 (KLR)
- Parties
- Applicant: Antony Kemeiwa Leboo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kibera
- Jurisdiction
- Kenya
- Case Number
- Martial Appeal E001 of 2024
- Procedural Posture
- Martial Appeal / Ruling on Sentence Revision Application
- Outcome
- application allowed
- Judges
- DR Kavedza
- Legal Topics
- Sentencing, Remand Custody, Court Martial Procedure, Revision of Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Antony Kemeiwa Leboo
Applicant
Republic
Respondent
Procedural Posture
Martial Appeal / Ruling on Sentence Revision Application
Legal Issues
- 1 Whether the trial court considered the period the applicant spent in remand custody when passing sentence.
- 2 Whether failure to consider remand custody time violates section 333(2) of the Criminal Procedure Code.
Ratio Decidendi
The court found that the trial court failed to consider the period the applicant spent in remand custody from 13th February 2021 to 26th June 2024 when passing sentence, as required by section 333(2) of the Criminal Procedure Code. This omission was a violation of a mandatory statutory obligation. The court held that the applicant was entitled to have the sentence computed from the date of arrest, and accordingly ordered that the sentence imposed by the Court Martial should run from 13th February 2021, ensuring compliance with the law and safeguarding the applicant's rights.
Court Disposition
application allowed
Orders
- The sentence imposed by the Court Martial shall run from 13th February 2021, the date of the applicant's arrest, pursuant to section 333(2) of the Criminal Procedure Code, Cap 75 Laws of Kenya.
Full Case Text
Judgment text and source record
23 paragraphs
Leboo v Republic (Martial Appeal E001 of 2024) [2024] KEHC 11512 (KLR) (30 September 2024) (Ruling)
Neutral citation: [2024] KEHC 11512 (KLR)
Republic of Kenya
In the High Court at Kibera
Martial Appeal E001 of 2024
DR Kavedza, J
September 30, 2024
Between
Antony Kemeiwa Leboo
Applicant
and
Republic
Respondent
Ruling
1. The applicant was charged and convicted for various offences under the Kenya Defence Forces Act. After a full trial, he was sentenced as follows: Charge one, 6 months imprisonment; charge two, 9 months imprisonment; charge three 6 months imprisonment; charge four, 6 months imprisonment; charge five, 9 months imprisonment; charge six, 6 months imprisonment; charge seven, 1 year imprisonment and charge eight, 1 year imprisonment. The sentences were to run concurrently.
2. He has now filed an application seeking revision of sentence. He filed an affidavit in support of his motion. The arguments raised are that the trial court failed to consider the time she 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.
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, the applicant was arrested on 13th February 2021 and was never released on bond/bail during the entirety of his trial. He was convicted on 26th June 2024. From the record, it is clear that the period was not factored in during his sentencing. 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. In the premises, I make the following orders: the sentence imposed by the Court Martial shall run from 13th February 2021, the date of the appellant’s arrest, pursuant to Section 333(2) of the Criminal Procedure Code, Cap 75 Laws of Kenya.
Orders accordingly.
RULING DATED AND DELIVERED VIRTUALLY THIS 30TH DAY OF SEPTEMBER 2024D. KAVEDZAJUDGEIn the presence of:Applicant PresentMaroro for the RespondentAchode Court Assistant