[2024] KEHC 6111 (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 1 year, 2 months, and 16 days, which was not factored into the...
Source-derived case information.
- Citation
- [2024] KEHC 6111 (KLR)
- Parties
- Applicant: Geoffrey Muruga; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kibera
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 6 of 2024
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Sentence
- Outcome
- application allowed; sentence revised
- Judges
- DR Kavedza
- Legal Topics
- Sentencing Principles, Defilement Offences, Remand Custody Credit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Geoffrey Muruga
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the trial court erred by failing to consider the period the applicant spent in remand custody when passing sentence.
- 2 Whether the applicant is entitled to have his 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 1 year, 2 months, and 16 days, which was not factored into the original sentence of twenty-five years imprisonment for defilement. The High Court held that failure to account for this period amounted to a denial of the applicant's statutory right and an error in sentencing. Accordingly, the sentence was revised to deduct the remand period from the total sentence, and the sentence was ordered to run from the date of conviction.
Court Disposition
application allowed; sentence revised
Orders
- The sentence of twenty-five years imprisonment is to be computed less by 1 year, 2 months, and 16 days spent in remand custody.
- The revised sentence shall run from the date of conviction.
Full Case Text
Judgment text and source record
21 paragraphs
Muruga v Republic (Criminal Revision 6 of 2024) [2024] KEHC 6111 (KLR) (27 May 2024) (Ruling)
Neutral citation: [2024] KEHC 6111 (KLR)
Republic of Kenya
In the High Court at Kibera
Criminal Revision 6 of 2024
DR Kavedza, J
May 27, 2024
Between
Geoffrey Muruga
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(2) of the Sexual Offences Act, No. 3 of 2006. He was sentenced to serve twenty-five (25) 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 v. Republic [2018] eKLR and Bethwel Wilson Kibor v. Republic [2009] eKLR and more recently in the High Court case of Vincent Sila Jona & 87 others v 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 3rd February 2017. He was arraigned in court for take plea. He was released on bond on 18th April 2018 until his conviction on 22nd July 2021. He, therefore, spent 1 years 2 months and 16 days in remand custody. From the record, it is clear that the period was not factored in during his sentencing. 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 20 years imprisonment is substituted with a sentence of fifteen years imprisonment. The sentence of twenty-five years imprisonment shall be computed less by 1 year 2 months and 16 days and shall run from the date of conviction.Orders accordingly.
Ruling dated and delivered virtually this 27th day of May 2024D. KAVEDZAJUDGE