[2025] KEHC 3688 (KLR)
The court held that the trial magistrate had already complied with Section 333(2) of the Criminal Procedure Code by ordering the applicant's sentence to commence from the date of his arrest, thereby accounting for the period spent in remand custody. The court further found that the offences for which the applicant...
Source-derived case information.
- Citation
- [2025] KEHC 3688 (KLR)
- Parties
- Applicant: Eric Mutunga Mulwa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E143 of 2024
- Procedural Posture
- Criminal Revision / Ruling on Application for Sentence Review
- Outcome
- application dismissed
- Judges
- EN Maina
- Legal Topics
- Sentencing Principles, Remand Custody Credit, Sexual Offences, Minimum Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eric Mutunga Mulwa
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Sentence Review
Legal Issues
- 1 Whether the period spent in remand custody by the applicant should be considered in computing his sentence under Section 333(2) of the Criminal Procedure Code.
- 2 Whether the applicant is entitled to have the remainder of his sentence served as a non-custodial sentence despite the statutory minimum sentence for sexual offences.
Ratio Decidendi
The court held that the trial magistrate had already complied with Section 333(2) of the Criminal Procedure Code by ordering the applicant's sentence to commence from the date of his arrest, thereby accounting for the period spent in remand custody. The court further found that the offences for which the applicant was convicted were serious and attracted a statutory minimum sentence, which precluded the grant of a non-custodial sentence. Consequently, the application for sentence revision and for a non-custodial sentence was dismissed in its entirety.
Court Disposition
application dismissed
Orders
- The application for sentence revision is dismissed in its entirety.
- No orders as to costs.
Full Case Text
Judgment text and source record
22 paragraphs
Mulwa v Republic (Criminal Revision E143 of 2024) [2025] KEHC 3688 (KLR) (25 March 2025) (Ruling)
Neutral citation: [2025] KEHC 3688 (KLR)
Republic of Kenya
In the High Court at Machakos
Criminal Revision E143 of 2024
EN Maina, J
March 25, 2025
Between
Eric Mutunga Mulwa
Applicant
and
Republic
Respondent
(Review arising from the Sentence by Hon. D. Sure (P.M) at the Chief Magistrate’s Court Kangundo in S.O. Case No. E010 of 2024 delivered on 17/10/2024)
Ruling
1. The Applicant brings this application firstly under Section 333(2) of the Criminal Procedure Code which obligates a court which is sentencing an accused person to take into consideration the period the accused person may have spent in remand custody. The Applicant has also urged this court to order that he serves the remainder of his term by way of a non-custodial sentence. The remainder of the term being what will be remaining once we deduct the eight (8) months he spent in remand custody.
2. I have considered the application carefully. From the record of the lower court, the Applicant was charged with two offences namely – Causing an indecent Act Contrary to Section 6(b) of the Sexual Offences Act and Threatening to kill Contrary to Section 223(1) of the Penal Code. The second charge arose from him threatening the victim of the sexual offence if she dared to report what he had done. He was found guilty, convicted and sentenced to imprisonment for five (5) years on each count but the sentences were to run concurrently. The sentence was imposed by the Hon. D. N. Sure, Principal Magistrate on 17/10/2024. The trial magistrate indicated that the sentence was to start running from 13/02/2024.
3. To quote his exact words:-“RulingI have considered the mitigation and the circumstances of the offence. I have considered Section 6 and it provides a minimum sentence of 5 years. I will sentence the accused as follows:-Count 1: The accused is sentenced to 5 years in jail.Count 2: The accused is sentenced to 5 years in jail.Sentence will run concurrently.The sentence to start counting from 13/02/2024D.N. Sure(sign)14 days right of appeal explained(sign)D.N. Sure (P.M)” (underlining mine)
4. Clearly, the period spent in custody was to be taken into account in computing the sentence which computation is to be done by the correctional facility where the Applicant is being held. He was arrested on 13/02/2024 and that is the date from which according to the learned trial magistrate, the sentence was to count. The application by the Applicant is therefore not merited and it is dismissed.
5. On the second limb for a non-custodial sentence, it is instructive that he was jailed for very serious offences and indeed the sexual offence carries a minimum sentence with which this court cannot interfere – see the case of Republic vs Mwangi, Initiative for Strategic Litigation in Africa & 3 others (amicus curiae) Petition No E018 of 2023[2024] KESC 34[KLR] (12TH July 2024) (Judgment).
6. The Application (undated Notice of Motion) filed by the Applicant is dismissed in its entirely.It is so ordered.
RULING SIGNED, DATED AND DELIVERED VIRTUALLY ON THIS 25TH DAY OF MARCH, 2025. E. N. MAINAJUDGEIn the presence of:Ms Kaburu for the ODPPThe Applicant in personC/A: Wambua