[2023] KEHC 2094 (KLR)
The court found that both the trial and appellate courts failed to indicate that the period spent in custody by the applicant was considered during sentencing. Section 333(2) of the Criminal Procedure Code makes it mandatory for courts to take into account the time spent in custody when imposing a sentence. The...
Source-derived case information.
- Citation
- [2023] KEHC 2094 (KLR)
- Parties
- Applicant: Makau Musya; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kitui
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision Application 033 of 2022
- Procedural Posture
- Criminal Revision Application / Judgment
- Outcome
- application allowed
- Judges
- F Wangari
- Legal Topics
- Sentencing Procedure, Time Spent in Custody, Sexual Offences, Defilement, Criminal Appeals
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Makau Musya
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision Application / Judgment
Legal Issues
- 1 Whether the applicant is entitled to have the period spent in custody prior to sentencing considered under section 333(2) of the Criminal Procedure Code.
- 2 Whether the trial and appellate courts erred by not factoring in the time spent in custody during sentencing.
Ratio Decidendi
The court found that both the trial and appellate courts failed to indicate that the period spent in custody by the applicant was considered during sentencing. Section 333(2) of the Criminal Procedure Code makes it mandatory for courts to take into account the time spent in custody when imposing a sentence. The Judiciary Sentencing Policy Guidelines reinforce this requirement. The Court of Appeal in Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR held that sentences should run from the date of arrest if the accused was in custody. Therefore, the applicant's sentence should be computed from May 11, 2015, the date he was first presented in court, ensuring compliance with...
Court Disposition
application allowed
Orders
- The applicant's sentence shall start to run from May 11, 2015, when he was first presented in court.
Full Case Text
Judgment text and source record
22 paragraphs
Musya v Republic (Criminal Revision Application 033 of 2022) [2023] KEHC 2094 (KLR) (16 February 2023) (Judgment)
Neutral citation: [2023] KEHC 2094 (KLR)
Republic of Kenya
In the High Court at Kitui
Criminal Revision Application 033 of 2022
F Wangari, J
February 16, 2023
Between
Makau Musya
Applicant
and
Republic
Respondent
Judgment
1. The applicant herein was charged with the offence of defilement contrary to section 8(1) as read with section 8 (2) of the Sexual Offences Act1. He was also charged with the offence of committing an indecent act with a child contrary to section 11 (1) of the Sexual Offences Act. He pleaded not guilty to both counts and the matter proceeded for full hearing. The applicant was subsequently convicted of the main charge and sentenced to 20 years imprisonment.1Act No 3 of 2006
2. Aggrieved by the sentence, the applicant filed an appeal before the High Court, against the conviction and the sentence. Having found no merit in the appeal, Kariuki J dismissed the appeal, and confirmed the conviction and the sentence.
3. The appellant has now moved this court via an application filed on March 14, 2022, seeking to have the computation of the period spent in custody under section 333 (2) of the Criminal Procedure Code. The application was not opposed.
4. Section 333 (2) of the Criminal Procedure Code states;‘Subject to the provisions of section 38 of the Penal Code (Cap 63) every sentence shall be deemed to commence from, and to include of the day of, the date on which it was pronounced except where otherwise provided in this CodeProvided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take into account of the period spent in custody’
5. In his application, the appellant states that he does not seek to interfere with his conviction or sentence but the application of section 333 (2) of CPC. From the provision of the above section, it is mandatory for the court while sentencing, to consider the time spent in custody during trial. This is also amplified by The Judiciary Sentencing Policy Guidelines and Directions, where the courts are obligated to consider time already served in custody if the convicted person was in custody during trial.22The Judiciary Sentencing Policy Guidelines and Directions, Clause 7. 10
6. In Ahamad Abolfathi Mohammed & Another v Republic3, the Court of Appeal faulted the High Court for misdirecting itself by ordering that the appellants substituted sentence to run from the date of conviction instead of the date of the arrest. In this case, both the trial court and the appellate court did not state that the time spent in custody was factored. This means that the period was not taken into consideration.3Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR
Determination 7. From the above discussion, the courts ought to have considered the time spent in custody. I find that the application by the appellant has merits and is allowed as prayed. The sentence shall start to run from May 11, 2015 when the appellant was first presented in court.
DATED AND DELIVERED AT MOMBASA THIS 16TH DAY OF FEBRUARY, 2023. ...................................F. WANGARIJUDGEIn the presence of;Pauline Mwaniki for StateAppellant presentCourt Assistant - Guyo