[2022] KEHC 16235 (KLR)
The trial court erred by failing to consider the period the applicant spent in remand custody prior to sentencing, as required by Section 333(2) of the Criminal Procedure Code and the judiciary sentencing policy. The High Court, exercising its supervisory jurisdiction, found that this omission rendered the sentence...
Source-derived case information.
- Citation
- [2022] KEHC 16235 (KLR)
- Parties
- Applicant: Donati Msengeti Mwabili; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Voi
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E052 of 2022
- Procedural Posture
- Criminal Revision / Ruling on Application for Sentence Review
- Outcome
- application allowed; sentence revised
- Judges
- JN Onyiego
- Legal Topics
- Sentencing Principles, Remand Custody Credit, Supervisory Jurisdiction, Sentence Review
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Donati Msengeti Mwabili
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Sentence Review
Legal Issues
- 1 Whether the trial court erred by failing to take into account the period spent in remand custody when sentencing the applicant.
- 2 Whether the High Court should exercise its supervisory jurisdiction to revise the sentence imposed by the trial court.
Ratio Decidendi
The trial court erred by failing to consider the period the applicant spent in remand custody prior to sentencing, as required by Section 333(2) of the Criminal Procedure Code and the judiciary sentencing policy. The High Court, exercising its supervisory jurisdiction, found that this omission rendered the sentence improper. Consequently, the sentence was revised to account for the four months spent in remand custody, reducing the custodial sentence from five years to four years and eight months. The court emphasized that the law mandates consideration of remand custody time and that failure to do so is a legal error justifying intervention and revision by the High Court.
Court Disposition
application allowed; sentence revised
Orders
- The four months period spent in remand custody shall be factored into the sentence.
- The applicant shall serve four years and eight months imprisonment instead of five years.
Full Case Text
Judgment text and source record
22 paragraphs
Mwabili v Republic (Criminal Revision E052 of 2022) [2022] KEHC 16235 (KLR) (6 December 2022) (Ruling)
Neutral citation: [2022] KEHC 16235 (KLR)
Republic of Kenya
In the High Court at Voi
Criminal Revision E052 of 2022
JN Onyiego, J
December 6, 2022
Between
Donati Msengeti Mwabili
Applicant
and
Republic
Prosecution
((From original conviction and sentence in Criminal Case No. 854 of 2019 of the Chief Magistrate’s Court at Voi))
Ruling
1. The applicant herein was arraigned before Wundanyi Law courts on June 28, 2019 facing the offence of manslaughter contrary to section 202 of the penal code. Particulars were that on June 4, 2019 at Kishushe Sub-Location in Wundanyi Sub-County Taita Taveta County unlawfully killed John Mwachofi
2. The Applicant having pleaded not guilty, the matter was scheduled for hearing. Later the file was transferred to Voi law courts where the plea was on September 25, 2019 read afresh and the applicant pleaded guilty. He was convicted on his own guilty and sentenced to 5 years imprisonment on October 9, 2019. In sentencing, the court took into account the mitigation on record and the unfavourable probation report.
3. On April 6, 2022, he filed a chamber summons before this court seeking review of the sentence on grounds that the trial court did not take into account the period spent in remand custody. When the matter came for hearing, Mr. Sirima for the state conceded that indeed the court did not take into account the said period. I have perused the court record and the sentence meted out. It is true that the trial court did not take into account the period spent in remand custody as required under Section 333(2) of the CPC
4. Under Section 333(2) of the CPC and the judiciary sentencing policy, a trial court is obligated to take into consideration the period spent in remand custody by an accused person before pronouncing the appropriate sentence. See Ahmad Abolfathi Mohamed & another Cr. Appeal No. 135 of 2016[2018] eKLR and Michael Ntenge Kisina v Republic[2021] eKLR.
5. This court has been called upon to exercise its supervisory powers over a subordinate court pursuant to Article 165(6) & (7) of the constitution and section 362 and 364 of the CPC which bestows powers upon the high court to call for and examine the record of criminal proceedings of the lower court so as to satisfy itself as to the correctness, legality, propriety of any sentence passed or order made, and as to the regularity of any proceedings of such subordinate court.
6. In the circumstances of this case, the applicant spent about four months in remand custody which period was not taken into account when sentencing. This is a legal question which calls upon this court to interfere with the discretionary powers of sentencing by a trial court. In the circumstances, it is my finding that the application is merited and the same is allowed with orders that the four months period spent in remand custody shall be factored into when computing sentence hence the applicant shall serve four years and eight months.Right of appeal 14 days
DATED SIGNED AND DELIVERED IN OPEN COURT THIS 6TH DAY OF DECEMBER 2022. .......................J. N. ONYIEGOJUDGE2