[2019] KEHC 1707 (KLR)
The court found that the trial magistrate failed to consider the period the appellant spent in remand custody (1 year and 6 months) prior to sentencing, as required by law. The judge held that this period should have been deducted from the total sentence imposed. Consequently, the appellate court partially allowed...
Source-derived case information.
- Citation
- [2019] KEHC 1707 (KLR)
- Parties
- Appellant: Martin Bundi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nanyuki
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 103 of 2017
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- sentence varied
- Judges
- DW Mbuteti
- Legal Topics
- Sentencing Principles, Credit for Time Served, Stock Theft, Penal Code Section 278
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Martin Bundi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the trial court erred by failing to credit the appellant for the period spent in custody during trial.
- 2 Whether the sentence imposed was excessive in light of the time already served in remand.
Ratio Decidendi
The court found that the trial magistrate failed to consider the period the appellant spent in remand custody (1 year and 6 months) prior to sentencing, as required by law. The judge held that this period should have been deducted from the total sentence imposed. Consequently, the appellate court partially allowed the appeal by reducing the sentence from 4 years to 2 years and 6 months, effective from the date of original sentencing. The court emphasized the mandatory requirement under Section 333(2) of the Criminal Procedure Code to credit time served in custody, and found that the omission by the trial court constituted an error in principle warranting appellate intervention.
Court Disposition
sentence varied
Orders
- The appeal against sentence is partially allowed.
- The sentence of 4 years imprisonment is reduced by 1 year and 6 months, being the period spent in remand custody.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NANYUKI
CRIMINAL APPEAL NO 103 OF 2017
MARTIN BUNDI..............APPELLANT
VERSUS
REPUBLIC....................RESPONDENT
(Appeal from original Sentence dated 01/11/2016 in Nanyuki CM Criminal Case No 441 of 2016 – E Ngigi, SRM)
J U D G M E N T
1. The Appellant herein, MARTIN BUNDI, has appealed only against the sentence of 4 years imprisonment for stealing stockcontrary to section 278 of the Penal Code. That sentence was imposed on 01/11/2016. He was convicted after trial. His co-accused was acquitted. The particulars of the offence were that in the night of 3rd and 4th April, 2016 at Wangu Investment Company, Timau in Meru County, he and his co-accused jointly stole nine sheep valued at KShs 72,000/00, the property of the said company.
2. The Appellant’s complainant regarding the sentence is that the trial court did not give him credit for the period that he remained in custody during his trial.
3. I have perused the trial court record. The Appellant offered no mitigation. However, he was a first offender, which fact the trial court took into consideration. But it made no reference to the period that he was in custody during his trial. It was like it was not aware of that period. Had it been aware of it, it would definitely have made reference to it and taken it into account when sentencing the Appellant.
4. The Appellant was arraigned in court on 15/04/2016 when his plea was taken. He was sentenced on 01/11/2016. That was a period of 1 year and six (6) months, not 1 year and ten (10) months as he has stated. The trial court should have taken this period into account when sentencing the Appellant. It did not.
5. In the event I will partially allow the Appellant’s appeal against sentence by reducing the term of imprisonment of 4 years by the 1 year and six (6) months that he was in remand custody during his trial. That shall leave 2 years and six (6) months with effect from 30/10/2017, the date he was sentenced. That is the term of imprisonment that he shall serve. It is so ordered.
DATED AND SIGNED AT NANYUKI THIS 4TH DAY OF DECEMBER 2019
H P G WAWERU
JUDGE
DELIVERED AT NANYUKI THIS 5TH DAY OF DECEMBER 2019