[2024] KEHC 6948 (KLR)
The court found that the trial court failed to comply with the mandatory requirement under section 333(2) of the Criminal Procedure Code to consider the period the applicant spent in remand custody before sentencing. The applicant was in remand for nine months and twelve days, which was not deducted from the...
Source-derived case information.
- Citation
- [2024] KEHC 6948 (KLR)
- Parties
- Applicant: Nelson Musili Matheka; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kibera
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 102 of 2024
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Sentence
- Outcome
- application allowed; sentence revised to deduct remand period
- Judges
- DR Kavedza
- Legal Topics
- Sentencing Principles, Remand Custody Credit, Sexual Offences, Revision of Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Nelson Musili Matheka
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the trial court failed to consider the period the applicant spent in remand custody when computing the sentence.
- 2 Whether the applicant is entitled to have the sentence revised to account for time spent in custody.
Ratio Decidendi
The court found that the trial court failed to comply with the mandatory requirement under section 333(2) of the Criminal Procedure Code to consider the period the applicant spent in remand custody before sentencing. The applicant was in remand for nine months and twelve days, which was not deducted from the twenty-year sentence imposed for defilement. The failure to account for this period was a violation of the applicant's statutory right and the court's legal obligation. Consequently, the High Court revised the sentence to deduct the remand period from the total term of imprisonment, ensuring compliance with the law and upholding the applicant's rights.
Court Disposition
application allowed; sentence revised to deduct remand period
Orders
- The sentence of twenty (20) years imprisonment shall be computed less by nine (9) months and twelve (12) days.
- The sentence shall run from the date of conviction.
Full Case Text
Judgment text and source record
21 paragraphs
Matheka v Republic (Criminal Revision 102 of 2024) [2024] KEHC 6948 (KLR) (10 June 2024) (Ruling)
Neutral citation: [2024] KEHC 6948 (KLR)
Republic of Kenya
In the High Court at Kibera
Criminal Revision 102 of 2024
DR Kavedza, J
June 10, 2024
Between
Nelson Musili Matheka
Applicant
and
Republic
Respondent
Ruling
1. The applicant was charged and convicted for the offence of defilement contrary to section 8 (1) as read with section 8(3) of the Sexual Offences Act, No. 3 of 2006. He was sentenced to serve twenty (20) years imprisonment. He has now filed an application seeking revision of sentence. He filed an affidavit in support of his motion. The arguments raised are that the trial court failed to consider the time she spent in reman custody during the computation of sentence under the provision of section 333(2) of the Criminal Procedure Code, Cap 75 of the Laws of Kenya.
2. I have considered the application, the affidavit in support and the applicable law. I have also considered the trial court record. The issue for consideration is whether the trial court considered the time the applicant spent in remand custody.
3. The proviso to section 333(2) of the Criminal Procedure Code obligates the court to consider the time already spent in custody. The duty to take in account the period an accused person had remained in custody in sentencing under the proviso to section 333(2) of the Criminal Procedure Code which is couched in mandatory terms was acknowledged by the Court of Appeal in Ahamad Abolfathi Mohammed & Another vs. Republic [2018] eKLR and Bethwel Wilson Kibor vs. Republic [2009] eKLR and more recently in the High Court case of Vincent Sila Jona & 87 others vs Kenya Prison Service & 2 others [2021] eKLR.
4. It is therefore clear that it is mandatory that the period which an accused has been held in custody prior to being sentenced be considered in meting out the sentence where it is not hindered by other provisions of the law.
5. From the record, the applicant was arrested on 10th December 2012. He was arraigned in court for take plea. He was released on bond on 17th September 2013 until his conviction. He, therefore, spent 9 moths and 12 days in remand custody. From the record, it is clear that the period was not factored in during his sentencing and appeal. Guided by the law, the court is of the view that the application ought to be considered, as failure to do so would amount to denying the applicant a right due to the failure of the court to discharge an obligation bestowed upon it by law.
6. I thus allow the application. In the premises, I make the following orders: the sentence of twenty (20) years imprisonment shall be computed less by nine (9) months and twelve (12) days and shall run from the date of conviction.Orders accordingly.
RULING DATED AND DELIVERED VIRTUALLY THIS 10TH DAY OF JUNE 2024. D. KAVEDZAJUDGE