[2023] KEHC 3268 (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 High Court exercised its supervisory jurisdiction to revise the sentence, ordering that the applicant's 30-year...
Source-derived case information.
- Citation
- [2023] KEHC 3268 (KLR)
- Parties
- Applicant: James Malonza Mutisya; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Makueni
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E210 of 2022
- Procedural Posture
- Criminal Revision / Ruling on Sentence Revision
- Outcome
- sentence revised to account for pre-sentence custody
- Judges
- TM Matheka
- Legal Topics
- Sentencing Revision, Pre Sentence Custody, Commencement of Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Malonza Mutisya
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Sentence Revision
Legal Issues
- 1 Whether the trial court erred by failing to consider the period the applicant spent in custody prior to sentencing.
- 2 Whether the applicant is entitled to have his sentence revised to account for pre-sentence custody as per 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 High Court exercised its supervisory jurisdiction to revise the sentence, ordering that the applicant's 30-year imprisonment term should commence from the date of his arrest and placement in custody, May 25, 2006. This ensures that the applicant receives credit for time already served, in line with statutory and constitutional requirements for fair sentencing.
Court Disposition
sentence revised to account for pre-sentence custody
Orders
- The applicant to serve 30 years’ imprisonment with effect from May 25, 2006, the date of arrest and placement in custody.
- A revised committal warrant to issue and be served upon Kenya Prisons Services, officer in charge Makueni Main Prison for compliance.
Full Case Text
Judgment text and source record
21 paragraphs
Mutisya v Republic (Criminal Revision E210 of 2022) [2023] KEHC 3268 (KLR) (29 March 2023) (Ruling)
Neutral citation: [2023] KEHC 3268 (KLR)
Republic of Kenya
In the High Court at Makueni
Criminal Revision E210 of 2022
TM Matheka, J
March 29, 2023
Between
James Malonza Mutisya
Applicant
and
Republic
Respondent
Ruling
1. The appellant vide an undated chamber summons filed on November 17, 2022 seeks the review of his sentence under section 332(2) of the Criminal Procedural Code.
2. On January 8, 2008, he was sentenced to serve 30 years imprisonment for rape contrary to section 140 of the Penal Code in Kilungu RMCRC 237/2006.
3. The record shows he was arrested on May 25, 2006 and he took plea on June 5, 2006. He was granted a bond of Kshs 200,000/= with a surety of similar surety amount. He remained in custody until January 8, 2008 when he was sentenced to 30 years’ imprisonment.
4. It is evident from the record that in meting the sentence the learned trial magistrate did not abide by the provisions of section 333(2) of the Criminal Procedure Code – which states: -Subject to the provisions of section 38 of the PenalCode every sentence shall be deemed to commence from, and to include the whole of the day of the date on which it was pronounced …..Provided that where the person sentenced under sub-section (1) has prior to such sentence been held in custody, the sentence shall take account of the period spent in custody.”
5. Pursuant to the above provision, it was necessary for the learned trial magistrate to indicate whether or not he had taken into account the period the applicant had been in custody pending trial.
6. In the absence of that – it is only fair and just – that pursuant to this court’s supervisory jurisdiction under article 165(6) and 7 of the Constitution – the applicant’s sentence is revised as follows: –i.The applicant to serve 30 years’ imprisonment with effect from May 25, 2006 which is the date he was arrested and placed in custody.ii.A revised committal warrant to issue accordingly and be served upon Kenya Prisons Services, the officer in charge Makueni Main Prison for compliance.
DATED, SIGNED & DELIVERED THIS 29TH DAY OF MARCH, 2023. MUMBUA T. MATHEKAJUDGECA: MwiwaApplicant Present in CourtMs. Nyakibia for State