[2023] KEHC 25744 (KLR)
The court held that section 333(2) of the Criminal Procedure Code requires that any period spent in custody prior to sentencing must be considered in the computation of the sentence. The court found that the applicant was entitled to have the period spent in remand custody included in his sentence calculation. The...
Source-derived case information.
- Citation
- [2023] KEHC 25744 (KLR)
- Parties
- Applicant: Cyrus Matavi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kibera
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 26 of 2023
- Procedural Posture
- Criminal Revision / Ruling on Application for Sentence Revision
- Outcome
- Application partly allowed.
- Judges
- DR Kavedza
- Legal Topics
- Sentence Computation, Remand Period Credit, Revisionary Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Cyrus Matavi
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Sentence Revision
Legal Issues
- 1 Whether the applicant is entitled to have the period spent in remand custody considered in the computation of his sentence.
- 2 Whether the applicant is entitled to a non-custodial sentence for the remainder of his term.
Ratio Decidendi
The court held that section 333(2) of the Criminal Procedure Code requires that any period spent in custody prior to sentencing must be considered in the computation of the sentence. The court found that the applicant was entitled to have the period spent in remand custody included in his sentence calculation. The court exercised its revisionary jurisdiction to direct that the applicant's sentence should run from the date of his arrest, 20th January 2018, thereby regularizing the record to reflect the law and prevent miscarriage of justice. However, the court found no basis to grant a non-custodial sentence for the remainder of the applicant's term and dismissed that prayer.
Court Disposition
Application partly allowed.
Orders
- The period the applicant spent in custody shall be included in the computation of his sentence by Prison Officers.
- The sentence shall run effective from the date of arrest, 20th January 2018.
Full Case Text
Judgment text and source record
23 paragraphs
Matavi v Republic (Criminal Revision 26 of 2023) [2023] KEHC 25744 (KLR) (23 November 2023) (Ruling)
Neutral citation: [2023] KEHC 25744 (KLR)
Republic of Kenya
In the High Court at Kibera
Criminal Revision 26 of 2023
DR Kavedza, J
November 23, 2023
Between
Cyrus Matavi
Applicant
and
Republic
Respondent
Ruling
1. The applicant was charged, convicted and sentenced to ten (10) years imprisonment for the offence of robbery with violence contrary to section 295 as read with section 296(2) of the Penal Code.
2. The applicant has now filed an undated Chamber Summons application seeking revision of his sentence. He prays that the court takes into account the period he spent in remand and revise his sentence. He further prays for a non-custodial sentence for the remaining part of his sentence.
3. The application is supported by an affidavit sworn by the applicant, Cyrus Matavi Mutsotso, in which he reiterates the said grounds.
4. While the application is premised on the provisions of section 333 (2) of the Criminal Procedure Code, it invokes the revisionary jurisdiction of this court which is donated by section 362 of the Criminal Procedure Code which reads as follows:“…The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.
5. Section 333 (2) of the Criminal Procedure Code (Cap 75) Laws of Kenya provides that:“(2)Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.”
6. This court can only intervene to regularize the record to reflect the actual intention of Section 333 (2) of the CPC and to avoid any miscarriage of justice. Based on the foregoing, I allow the application and direct that the period the applicant spent in custody be included in the computation of his sentence by the Prison Officers. That is to say, that the sentence shall run effective from the date of arrest, which is 20th January 2018.
7. However, the prayer to serve a non-custodial sentence is dismissed.
8. It is so ordered.
RULING DATED AND DELIVERED VIRTUALLY THIS 23rd DAY OF NOVEMBER 2023. D.KAVEDZAJUDGEIn the presence of:Ms. Kibathi for the State.Applicant absent (VTC).Ms. Joy/ Ms. Njuguna C/A.