[2023] KEHC 172 (KLR)
The court found that although the trial court stated it considered the period spent in custody, it did not clarify whether that period was to be deducted from the 12-year sentence or included within it. The High Court held that such clarity is necessary and should benefit the applicant. However, upon review, the...
Source-derived case information.
- Citation
- [2023] KEHC 172 (KLR)
- Parties
- Applicant: Paul Kimani Mbugua; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Naivasha
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E014 of 2022
- Procedural Posture
- Miscellaneous Criminal Application / Sentence Review Ruling
- Outcome
- Application for sentence review allowed in part; sentence enhanced to statutory minimum.
- Judges
- GL Nzioka
- Legal Topics
- Sentence Review, Defilement, Sexual Offences Act, Minimum Sentencing, Custodial Period, Enhancement of Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Kimani Mbugua
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Sentence Review Ruling
Legal Issues
- 1 Whether the period spent in custody prior to sentencing should be considered in the applicant's sentence.
- 2 Whether the sentence imposed by the trial court was in accordance with the minimum sentence prescribed by law.
Ratio Decidendi
The court found that although the trial court stated it considered the period spent in custody, it did not clarify whether that period was to be deducted from the 12-year sentence or included within it. The High Court held that such clarity is necessary and should benefit the applicant. However, upon review, the court noted that the applicant was convicted under section 8(3) of the Sexual Offences Act, which mandates a minimum sentence of 20 years imprisonment for defilement of a child aged twelve to fifteen years. The trial court had imposed a sentence of 12 years, which was below the statutory minimum. Consequently, the High Court enhanced the sentence to 20 years imprisonment, to...
Court Disposition
Application for sentence review allowed in part; sentence enhanced to statutory minimum.
Orders
- The applicant's sentence is enhanced to 20 years imprisonment under section 8(3) of the Sexual Offences Act.
- The sentence shall commence from the date of arraignment in court.
Full Case Text
Judgment text and source record
22 paragraphs
Mbugua v Republic (Miscellaneous Criminal Application E014 of 2022) [2023] KEHC 172 (KLR) (4 January 2023) (Ruling)
Neutral citation: [2023] KEHC 172 (KLR)
Republic of Kenya
In the High Court at Naivasha
Miscellaneous Criminal Application E014 of 2022
GL Nzioka, J
January 4, 2023
Between
Paul Kimani Mbugua
Applicant
and
Republic
Respondent
Ruling
1. The applicant herein by a chamber summons application dated February 24, 2022 is seeking for sentence review purely on the ground that, the period he spent in custody while in trial be considered in the sentence meted out.
2. The application is supported by an affidavit of even date, sworn by the applicant, in which he states that, he was charged with the offence of defilement contrary to section 8(1)(3) of the Sexual Offences Act No 3 of 2006 vide Sexual Offence case No 55 of 2020. He was tried, convicted and sentenced to serve 12 years in jail. However, the period of custody was not considered.
3. The application was not responded to despite the opportunity given to the respondent for the same. I also note rather long submissions filed by the applicant. Be that, as it were the provisions of section 333(2) ofCriminal Procedure Code states as follows;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.
4. In the instant matter, the trial court states as follows before sentencing the applicantI find the actions of the accused unlawful and gross taking the age of PW2 and her gullibility into consideration. I find the accused guilty as charged for the offence of defilement contrary to section 8(1)(3) of the Sexual Offences Act and accordingly convict him under section 215 of the Criminal Procedure Code.
5. It is therefore clear that, the period spent in custody was considered, what the trial court did not clarify is whether, that period should be deducted from the 12 years imposed, or is exclusive thereof. In my opinion that clarity is necessary and the benefit thereof goes to the applicant. As such, the sentence imposed shall commence from the date of arraignment in court
6. But even then, I note that, the applicant was convicted under section 8(3) of Sexual Offences Act which states;A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
7. Pursuant thereto, the minimum sentence is 20 years and therefore I enhance the sentence to 20 years to commence from date of arraignment in court.
It is so ordered.Dated, delivered and signed on this 4th day of January 2023. GRACE L. NZIOKAJUDGEIn the presence of;Applicant present virtuallyMr. Ndiema for the state/RespondentMs Ogutu -Court Assistant