[2022] KEHC 16929 (KLR)
The Court found that the applicant had spent one year and four months in remand custody prior to conviction and sentencing by the Court Martial. Section 333(2) of the Criminal Procedure Code requires that such time be credited against the sentence imposed. The Court Martial failed to give full credit for this...
Source-derived case information.
- Citation
- [2022] KEHC 16929 (KLR)
- Parties
- Applicant: Corporal Tylen K. Machangoh; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E201 of 2022
- Procedural Posture
- Criminal Revision / Ruling
- Outcome
- Application for revision allowed; applicant to be released immediately unless otherwise lawfully held.
- Judges
- K Kimondo
- Legal Topics
- Sentencing Credit, Remand Custody, Court Martial Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Corporal Tylen K. Machangoh
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling
Legal Issues
- 1 Whether the applicant is entitled to credit for time spent in remand custody against the sentence imposed by the Court Martial.
- 2 Whether the failure to give full credit for remand time was an error warranting revision under the Criminal Procedure Code.
Ratio Decidendi
The Court found that the applicant had spent one year and four months in remand custody prior to conviction and sentencing by the Court Martial. Section 333(2) of the Criminal Procedure Code requires that such time be credited against the sentence imposed. The Court Martial failed to give full credit for this period, resulting in the applicant serving a longer custodial sentence than warranted by law. The prosecution conceded the error. Exercising its revisionary jurisdiction under sections 362 to 364 of the Criminal Procedure Code, and guided by the Chief Justice's circular on prison decongestion, the High Court held that the applicant was entitled to immediate release, as the sentence...
Court Disposition
Application for revision allowed; applicant to be released immediately unless otherwise lawfully held.
Orders
- The applicant, Corporal Tylen K. Machangoh, is to be released forthwith unless otherwise lawfully held.
Full Case Text
Judgment text and source record
23 paragraphs
Machangoh v Republic (Criminal Revision E201 of 2022) [2022] KEHC 16929 (KLR) (Crim) (28 December 2022) (Ruling)
Neutral citation: [2022] KEHC 16929 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Criminal
Criminal Revision E201 of 2022
K Kimondo, J
December 28, 2022
Between
Corporal Tylen K. Machangoh
Applicant
and
Republic
Respondent
Ruling
1. The applicant, number 80012 Corporal Tylen Machongoh, was convicted by the Court Martial sitting at Kahawa Barracks on three counts relating to conduct to prejudice of good order and service discipline contrary to section 121 of the Kenya Defence Forces Act 2012.
2. He was imprisoned for 1 year on the first count; 18 months on the second; and, 1 year on the third. The sentences were to run concurrently.
3. I have studied the certified copy of the proceedings. At page 185, members of the court acknowledged that at the time of conviction, the applicant had been in custody for a period of one year and four months.
4. The Court Martial however did not give the applicant full credit for the time spent in remand custody. I am alive that the maximum sentence for the offences was imprisonment for 2 years.
5. The learned prosecution counsel, Ms Chege, concedes that in the circumstances, the applicant is entitled to a credit for the time spent in remand.
6. I am well guided by section 333 (2) of the Criminal Procedure Code (hereafter the Code). In addition, the Honourable Chief Justice by a circular dated December 7, 2022 has directed the High Court to carry out a prison decongestion exercise within the framework of revision under sections 362 to 364 of the Code.
7. Considering that the sentence was confirmed on July 21, 2022 and the period spent in remand, the applicant is entitled to an immediate release. I accordingly order that he be released forthwith unless otherwise lawfully held.It is so ordered.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 28TH DAY OF DECEMBER, 2022. KANYI KIMONDOJUDGERuling read virtually in chambers in the presence of: -Mr…………………………………………………………………………………………………for the applicant instructed by Kwengu & Company Advocates.Ms……………………………………………………………………………………………..for the respondent instructed by the office of the Director of Public prosecutions.Mr. Edwin Ombuna, Court Assistant.