[2022] KEHC 10969 (KLR)
The court found that the applicant had spent five months and twelve days in custody before conviction and a further eight months in prison after sentencing. Applying Section 333(2) of the Criminal Procedure Code, which mandates that pre-sentence custody be considered in computing the sentence, the court determined...
Source-derived case information.
- Citation
- [2022] KEHC 10969 (KLR)
- Parties
- Applicant: Francis Ouma Malowa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E074 of 2022
- Procedural Posture
- Criminal Revision / Ruling
- Outcome
- application allowed; applicant released from custody
- Judges
- JN Kamau
- Legal Topics
- Burglary, Handling Stolen Property, Sentencing, Pre Sentence Custody, Community Service Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Ouma Malowa
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling
Legal Issues
- 1 Whether the applicant's pre-sentence custody period should be considered in computing his sentence under Section 333(2) of the Criminal Procedure Code.
- 2 Whether the applicant has already served his sentence and is entitled to immediate release.
Ratio Decidendi
The court found that the applicant had spent five months and twelve days in custody before conviction and a further eight months in prison after sentencing. Applying Section 333(2) of the Criminal Procedure Code, which mandates that pre-sentence custody be considered in computing the sentence, the court determined that the applicant had already completed his sentence. The court relied on the probation officer's report and the prison records, and concluded that continued detention would be unlawful. Accordingly, the applicant was ordered to be released forthwith unless held for another lawful cause.
Court Disposition
application allowed; applicant released from custody
Orders
- The applicant is to be released from custody forthwith unless held for any other lawful cause.
Full Case Text
Judgment text and source record
16 paragraphs
Malowa v Republic (Criminal Revision E074 of 2022) [2022] KEHC 10969 (KLR) (1 August 2022) (Ruling)
Neutral citation: [2022] KEHC 10969 (KLR)
Republic of Kenya
In the High Court at Busia
Criminal Revision E074 of 2022
JN Kamau, J
August 1, 2022
Between
Francis Ouma Malowa
Applicant
and
Republic
Respondent
Ruling
1. The Applicant and his co-accused were charged with the offence of burglary contrary to Section 304 (2) and Staling contrary to Section 268 as read with Section 279 (b) of the Penal Code63 (Laws of Kenya). They were also charged with the alternative charge of handling stolen property contrary to Section 322 (1) (2) of the Penal Code. They were arrested on 20/6/2021 and were admitted to bail on 29/6/2021. The Applicant herein was fined kshs. 60,000/= or in default to serve eighteen (18) months imprisonment on 2/11/2021. The earliest possible date given by Prisons is 2/11/2021. He has so far spent eight (8) months in prison. He spent five (5) months twelve (12) days in custody before he was convicted and sentenced. The Report by Joyce Achieng Odhiambo Probation/Community Service Officer filed on 29/7/2022 recommends that the Applicant serves Community Service Oder at Airstrip Primary School. According to the Prisons, he has three (3) months left. However, taking into account the Applicant spent in custody in line with Section 333 (2) of the Criminal Procedure Code Cap 75 (Laws of Kenya), he has already completed his sentence. It is hereby directed that the Applicant be and is hereby released from custody forthwith unless he be held for any other lawful cause. Orders accordingly.
DATED AND DELIVERED AT BUSIA ON THIS 1ST DAY OF AUGUST 2022. J. KAMAUJUDGE