[2022] KEHC 3152 (KLR)
The court held that while the applicant's request to have the remand period considered in his sentence is arguable and merits consideration under section 333(2) of the Criminal Procedure Code, the court cannot exercise its discretion or make a determination without first reviewing the trial and appellate records....
Source-derived case information.
- Citation
- [2022] KEHC 3152 (KLR)
- Parties
- Applicant: Leonard Muyekho; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E095 of 2021
- Procedural Posture
- Miscellaneous Criminal Application / Interlocutory Ruling on Application for Sentence Review Under Section 333(2) of the Criminal Procedure Code
- Outcome
- Interim orders issued; application deferred pending production of records.
- Judges
- WM Musyoka
- Legal Topics
- Sentencing Review, Remand Period Credit, Robbery With Violence, Death Penalty Substitution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Leonard Muyekho
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Interlocutory Ruling on Application for Sentence Review Under Section 333(2) of the Criminal Procedure Code
Legal Issues
- 1 Whether the applicant is entitled to have the period spent in remand custody considered in the computation of his sentence under section 333(2) of the Criminal Procedure Code.
- 2 Whether the court can exercise discretion to grant the relief sought without access to the trial and appellate records.
Ratio Decidendi
The court held that while the applicant's request to have the remand period considered in his sentence is arguable and merits consideration under section 333(2) of the Criminal Procedure Code, the court cannot exercise its discretion or make a determination without first reviewing the trial and appellate records. The court therefore directed that the relevant records be called for before proceeding further with the application.
Court Disposition
Interim orders issued; application deferred pending production of records.
Orders
- The Deputy Registrar is directed to call for the trial records in Butali PMCRCC No. 123 of 2008, the judgements in Kakamega HCCRA No. 76 of 2010 and Kisumu CACRA No. 60 of 2014, and the ruling in Kakamega HCCPet. No. 58 of 2018.
- The matter shall be mentioned on 28th July 2022.
Full Case Text
Judgment text and source record
20 paragraphs
Muyekho v Republic (Miscellaneous Criminal Application E095 of 2021) [2022] KEHC 3152 (KLR) (24 June 2022) (Ruling)
Neutral citation: [2022] KEHC 3152 (KLR)
Republic of Kenya
In the High Court at Kakamega
Miscellaneous Criminal Application E095 of 2021
WM Musyoka, J
June 24, 2022
Between
Leonard Muyekho
Applicant
and
Republic
Respondent
Ruling
1. The Motion, undated, but filed herein on 9th December 2021, is premised on section 333(2) of the Criminal Procedure Code, Cap 75, Laws of Kenya. The applicant would like the time he spent in remand be reckoned in determining his final sentence.
2. He avers that the trial court had sentenced him to death for robbery with violence, under section 292(2) of the Penal Code, Cap 63, Laws of Kenya. His appeals were all dismissed. The death penalty was subsequently substituted with twenty years imprisonment on the basis of Francis Karioko Muruatetu & another v Republic [2017] eKLR (Maraga CJ & P, Mwilu DCJ &VP, Ojwang, Wanjala, Njoki and Lenaola SCJJ).
3. The applicant has an arguable case. It merits consideration, but I will not be able to exercise discretion under section 333(2) of the Criminal Procedure Code, unless I have sight of the trial records, and the appeal records from the High Court and the Court of appeal.
4. Consequently, I do hereby direct the Deputy Registrar to call for the trial records in Butali PMCRCC No. 123 of 2008, and the judgements in Kakamega HCCRA No. 76 of 2010 and Kisumu CACRA No. 60 of 2014, and the ruling in Kakamega HCCPet. No. 58 of 2018.
5. The matter shall be mentioned on 28th July 2022. A production order shall issue. Copies of this ruling to be made available to the applicant and the Office of the Director of Public Prosecutions.
DELIVERED, DATED AND SIGNED AT KAKAMEGA ON THIS 24TH DAY OF JUNE 2022W M MUSYOKAJUDGEErick Zalo, Court Assistant.Leonard Muyekho, the applicant, in person.Mr. Mwangi, instructed by the Director of Public Prosecutions, for the respondent.2