[2024] KEHC 9561 (KLR)
The High Court found that the trial court failed to take into account the period the applicant spent in custody during trial, contrary to section 333(2) of the Criminal Procedure Code. The court also held that the sentence of twenty years imprisonment was the lawful minimum under section 8(3) of the Sexual Offences...
Source-derived case information.
- Citation
- [2024] KEHC 9561 (KLR)
- Parties
- Applicant: Antony Mwakatini Mwaisaka; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Voi
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E007 of 2024
- Procedural Posture
- Criminal Revision / Ruling on Application for Sentence Revision
- Outcome
- Application for revision allowed in part.
- Judges
- GMA Dulu
- Legal Topics
- Sentencing Principles, Defilement Offence, Credit for Pretrial Custody, Minimum Sentences, Sexual Offences Act, Criminal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Antony Mwakatini Mwaisaka
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Sentence Revision
Legal Issues
- 1 Whether the trial court erred by failing to take into account the period the applicant spent in custody during trial when imposing sentence.
- 2 Whether the sentence imposed was in accordance with the minimum sentence prescribed by law for the offence of defilement.
Ratio Decidendi
The High Court found that the trial court failed to take into account the period the applicant spent in custody during trial, contrary to section 333(2) of the Criminal Procedure Code. The court also held that the sentence of twenty years imprisonment was the lawful minimum under section 8(3) of the Sexual Offences Act, given the age of the complainant. Consequently, the court ordered that the applicant's sentence should run from the date of his arrest, thereby crediting him for the period spent in pretrial custody.
Court Disposition
Application for revision allowed in part.
Orders
- The prison sentence imposed on Antony Mwakatini Mwaisaka shall run from 18th February 2011, the date of his arrest.
Full Case Text
Judgment text and source record
20 paragraphs
Mwaisaka v Republic (Criminal Revision E007 of 2024) [2024] KEHC 9561 (KLR) (22 July 2024) (Ruling)
Neutral citation: [2024] KEHC 9561 (KLR)
Republic of Kenya
In the High Court at Voi
Criminal Revision E007 of 2024
GMA Dulu, J
July 22, 2024
Between
Antony Mwakatini Mwaisaka
Applicant
and
Republic
Respondent
Ruling
1. This is a request for revision of prison sentence brought to this court by the convict Antony Mwakatini Mwaisaka in Wundanyi Magistrate’s Criminal Case No. 114 of 2011 wherein he was imprisoned for twenty (20) years for defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act, No. 3 of 2006.
2. He has now come to this court urging that his prison sentence be reviewed, as the period he was in custody during trial was not factored by the trial court in the sentence imposed on him, and that as the complainant was 15 years old, he should have been sentenced to a minimum of 15 years imprisonment.
3. Learned Prosecuting Counsel Mr. Sirima for the Director of Public Prosecutions, has on his part, submitted that the period of seven (7) months and twenty one (21) days within which the convict was in custody during trial from 21st February 2011, was not taken into account by the trial court, in sentencing him, and thus the said period may be deducted from his prison sentence.
4. Having myself perused the record of the trial court, I find that the period the convict was in custody during trial, was not taken into account by the trial court in sentencing him, and that the charge sheet shows that he was arrested on 18th February 2011. As for the applicant’s contention that the sentence of 20 years imprisonment, was not the lawful minimum, in my view, it was the lawful minimum sentence under Section 8(2).
5. Thus, in accordance with the provisions of section 333(2) of the Criminal Procedure Code (Cap.75) therefore, I take into account the custody period during trial and order that the prison sentence imposed on the convict Antony Mwakitini Mwaisaka will now run from 18th February 2011, when he was arrested.
DATED, SIGNED AND DELIVERED THIS 22ND DAY OF JULY 2024 IN OPEN COURT AT VOI.GEORGE DULUJUDGEIn the presence of:-Alfred – Court AssistantApplicantMr. Sirima for State – virtual**