[2022] KEHC 10048 (KLR)
The court found that the trial magistrate failed to comply with Section 333(2) of the Criminal Procedure Code by not considering the period the applicant spent in custody prior to sentencing. The court held that the sentence of fifteen years' imprisonment should be computed from the date of arrest, 6th May 2018,...
Source-derived case information.
- Citation
- [2022] KEHC 10048 (KLR)
- Parties
- Applicant: James Nyakundi Momanyi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E028 of 2022
- Procedural Posture
- Criminal Revision / Ruling on Application for Sentence Review
- Outcome
- application allowed
- Judges
- LN Mutende
- Legal Topics
- Sentencing Principles, Time Spent in Custody, Sexual Offences, Defilement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Nyakundi Momanyi
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Sentence Review
Legal Issues
- 1 Whether the applicant is entitled to have the period spent in custody prior to sentencing considered in the computation of his sentence.
- 2 Whether the trial court erred by failing to comply with Section 333(2) of the Criminal Procedure Code.
Ratio Decidendi
The court found that the trial magistrate failed to comply with Section 333(2) of the Criminal Procedure Code by not considering the period the applicant spent in custody prior to sentencing. The court held that the sentence of fifteen years' imprisonment should be computed from the date of arrest, 6th May 2018, thereby ensuring compliance with the statutory requirement that time spent in custody is factored into the sentence. The application for revision was therefore allowed, and the sentence was ordered to run from the date of arrest.
Court Disposition
application allowed
Orders
- The sentence of fifteen years' imprisonment shall be effective from the date of arrest, 6th May 2018.
Full Case Text
Judgment text and source record
22 paragraphs
Momanyi v Republic (Criminal Revision E028 of 2022) [2022] KEHC 10048 (KLR) (Crim) (12 July 2022) (Ruling)
Neutral citation: [2022] KEHC 10048 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Criminal
Criminal Revision E028 of 2022
LN Mutende, J
July 12, 2022
Between
James Nyakundi Momanyi
Applicant
and
Republic
Respondent
Ruling
1. James Nyakundi Momanyi, the applicant, was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006. The complainant was a child aged ten (10) years.
2. Having been taken through full trial he was found guilty, convicted and sentenced to serve fifteen (15) years imprisonment.
3. By an application filed herein on 21st February, 2022, he seeks review of sentence to include time spent in custody as provided by Section 333 (2) of the Criminal Procedure Code (CPC) which provides as follows:(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.
4. The State through learned Counsel Ms. Adhambo conceded the application on the grounds that the trial court failed to comply with the law.
5. I have considered what transpired at trial. It is apparent that the learned Magistrate did not take into account the time the applicant was incarcerated during trial. In the premises, the application succeeds. I therefore direct that the fifteen (15)years the applicant was sentenced to will be effective from the date of arrest, the 6th day of May, 2018.
6. It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI, THIS 12TH DAY OF JULY, 2022. L. N. MUTENDEJUDGEIn the presence of:ApplicantMs. Adhiambo for DPPCourt Assistant - Mutai