[2024] KEHC 4651 (KLR)
The court found that neither the trial court nor the High Court on appeal gave directions regarding the commencement date of the applicant's sentence. Section 333(2) of the Criminal Procedure Code requires that the period spent in remand custody be accounted for in the sentence. The applicant had spent 1 year and 4...
Source-derived case information.
- Citation
- [2024] KEHC 4651 (KLR)
- Parties
- Applicant: Stephen Musewe; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition 35 of 2023
- Procedural Posture
- Criminal Petition / Sentence Review Application
- Outcome
- application allowed in part
- Judges
- DO Ogembo
- Legal Topics
- Sentence Revision, Remand Custody Credit, Defilement Offence, Minimum Mandatory Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Musewe
Applicant
Republic
Respondent
Procedural Posture
Criminal Petition / Sentence Review Application
Legal Issues
- 1 Whether the period spent by the applicant in remand custody should be considered in computing the sentence imposed for defilement.
- 2 Whether the applicant is entitled to a revision of sentence under Section 333(2) of the Criminal Procedure Code.
Ratio Decidendi
The court found that neither the trial court nor the High Court on appeal gave directions regarding the commencement date of the applicant's sentence. Section 333(2) of the Criminal Procedure Code requires that the period spent in remand custody be accounted for in the sentence. The applicant had spent 1 year and 4 months in remand custody prior to sentencing, and this period was not considered by the lower courts. The court therefore held that the sentence of 20 years imprisonment should run from the date of the applicant's arrest, 30/6/2014, thereby giving effect to the statutory requirement to credit the remand period against the sentence imposed.
Court Disposition
application allowed in part
Orders
- The applicant shall serve 20 years imprisonment as sentenced by the trial court and confirmed on appeal.
- The sentence shall run from 30/6/2014, the date of arrest of the applicant.
Full Case Text
Judgment text and source record
22 paragraphs
Musewe v Republic (Criminal Petition 35 of 2023) [2024] KEHC 4651 (KLR) (29 April 2024) (Ruling)
Neutral citation: [2024] KEHC 4651 (KLR)
Republic of Kenya
In the High Court at Siaya
Criminal Petition 35 of 2023
DO Ogembo, J
April 29, 2024
Between
Stephen Musewe
Applicant
and
Republic
Respondent
(Being an Application for Sentence Review from Sentence in the High Court at Siaya in Criminal Case No. 29 of 2016 delivered on 5/10/2022 by Hon. Justice R.E. Aburili - Judge)
Ruling
1. Stephen Musewe, the Applicant, has filed a Notice of Motion Application before this court, dated 26/6/2023. On its heading, the Application is brought under multiple provisions of the Constitution and Section 216,329 and 333(2) of the Criminal Procedure Code. The Application prays for revision of the sentence of the Applicant. It is supported by an Affidavit of the Applicant in which it has been deponed that the Applicant had been charged, convicted and sentenced to serve 20 years imprisonment for the offence of Defilement contrary to Section 8 (3) of the Sexual Offences Act. That this was in Ukwala PM’s Court, Criminal No. 365 of 2014.
2. That he filed an Appeal at the High Court, being HCCR Appeal No. 29 of 2016, which appeal was dismissed by the court on 19/11/2018. In the same Affidavit, the Applicant has raised several factors of mitigation, particularly that he was reformed and that the period of 1 year and 4 months he remained in remand custody be accounted for in the sentence. He has also filed submissions highlighting on the same.
3. The prosecution did not make any substantive response to the application of the applicant.
4. I have considered this application, and the Affidavit and Submissions filed by the Applicant. I have also considered the record of proceedings regarding the case of the Applicant. It is clear from the proceedings of both the trial court that the applicant was handed out the minimum mandatory sentence of 20 years imprisonment. And it is, the same sentence that was confirmed by the High Court on appeal.
5. However, neither the trial court nor the High court gave any directions on when the sentence of the Applicant would commence. Section 333 (2) of the Criminal Procedure Code declares that such period spent by the Applicant in remand custody ought to be accounted for in the sentence.
6. It is on this basis that I find merit in this application for revision. I accordingly order that the Applicant serves 20 years imprisonment as sentenced by the trial court, and confirmed on appeal by the High Court. The sentence of the Applicant shall run from 30/6/2014, the date of arrest of the Applicant. Orders accordingly.
DATED, SIGNED AND DELIVERED THIS 29TH DAY OF APRIL, 2024. D.O. OGEMBOJUDGE29/4/2024CourtRULING READ OUT IN OPEN COURT IN PRESENCE OF THE APPLICANT, (KISUMU MAXIMUM) AND MS. MUMU FOR STATE.D.O. OGEMBOJUDGE29/4/2024