[2023] KEHC 3012 (KLR)
The court found that the applicant was in remand custody throughout his trial and, pursuant to Section 333(2) of the Criminal Procedure Code, is entitled to have that period credited towards his sentence. The trial magistrate had considered mitigation but was constrained by the statutory minimum sentence under...
Source-derived case information.
- Citation
- [2023] KEHC 3012 (KLR)
- Parties
- Applicant: Juma Malunja Lugo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E156 of 2022
- Procedural Posture
- Miscellaneous Criminal Application / Sentence Review Ruling
- Outcome
- sentence reviewed and reduced
- Judges
- A. Ong’injo
- Legal Topics
- Sentencing Review, Remand Custody Credit, Sexual Offences, Minimum Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Juma Malunja Lugo
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Sentence Review Ruling
Legal Issues
- 1 Whether the period spent in remand custody should be factored into the applicant's sentence under Section 333(2) of the Criminal Procedure Code.
- 2 Whether the applicant's mitigation and recent jurisprudence justify a review of the sentence imposed for defilement.
Ratio Decidendi
The court found that the applicant was in remand custody throughout his trial and, pursuant to Section 333(2) of the Criminal Procedure Code, is entitled to have that period credited towards his sentence. The trial magistrate had considered mitigation but was constrained by the statutory minimum sentence under Section 8(3) of the Sexual Offences Act. However, in light of recent jurisprudence emphasizing proportionality and the need to consider time spent in custody, the court reviewed the sentence from 20 years to 15 years, effective from the date the applicant was first remanded, December 21, 2013.
Court Disposition
sentence reviewed and reduced
Orders
- The applicant's sentence is reviewed from 20 years to 15 years' imprisonment.
- The sentence shall take effect from December 21, 2013.
Full Case Text
Judgment text and source record
22 paragraphs
Lugo v Republic (Miscellaneous Criminal Application E156 of 2022) [2023] KEHC 3012 (KLR) (24 March 2023) (Ruling)
Neutral citation: [2023] KEHC 3012 (KLR)
Republic of Kenya
In the High Court at Mombasa
Miscellaneous Criminal Application E156 of 2022
A. Ong’injo, J
March 24, 2023
Between
Juma Malunja Lugo
Applicant
and
Republic
Respondent
Ruling
1. The Applicant Juma Malunga Lugo applied pursuant to Section 333(2) of the Criminal Procedure Code that period he spent in remand custody be factored in his sentence.
2. The appellant was convicted for the offence of defilement contrary to Section 8(1) as read with section 8(3) of the Sexual Offences Act and was sentenced to serve 20 years’ jail term.
3. Applicants appeal to the High Court and Court of Appeal were dismissed and conviction and sentence upheld. The Applicant now seeks that period spent in custody be factored in his sentence and that his mitigation during sentencing and now be considered in reviewing his sentence.
4. The Applicant was arraigned in court jointly with 2 others on December 27, 2013 and bond of Kshs 100,000/= with sureties of similar amount granted to each.
5. I have perused the records of the trial court and established the applicant was in remand custody throughout his trial and is therefore entitled to provisions of Section 333(2) of the Criminal Procedure Code.
6. The Applicants sentence of 20 years should take effect from 2December 7, 2013. The trial Magistrate did however consider the mitigation but indicated that her hands were tied by the provisions of section 8(3) of the Sexual Offences Act which provides minimum sentences.
7. In consideration of the principles in Francis Muruatetu Petition and the holding in Philip Mueke & others v Republicthis court reviews the sentence to 15 years to take effect from December 21, 2013.
DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 24TH DAY OF MARCH, 2023. HON. LADY JUSTICE A. ONG’INJOJUDGEIn the presence of:-Ogwel- Court AssistantAccused – Present in personMr. Ngiri – Counsel for StateHON. LADY JUSTICE A. ONG’INJOJUDGE