[2024] KEHC 10829 (KLR)
The court found that the period the applicant spent in remand custody was already considered during the appeal, where the sentence was reduced from twenty to fifteen years. The judge on appeal explicitly stated that the remand period was taken into account. Therefore, there was no basis for further sentence review,...
Source-derived case information.
- Citation
- [2024] KEHC 10829 (KLR)
- Parties
- Applicant: Michael Mwangi Mwaniki; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kibera
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E024 of 2024
- Procedural Posture
- Criminal Revision / Ruling on Sentence Review Application
- Outcome
- application dismissed
- Judges
- DR Kavedza
- Legal Topics
- Sentencing Review, Remand Custody Credit, Defilement Offence, Sexual Offences Act, Sentence Reduction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Michael Mwangi Mwaniki
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Sentence Review Application
Legal Issues
- 1 Whether the trial court considered the period the applicant spent in remand custody during sentencing as required by law.
- 2 Whether the applicant is entitled to further reduction of sentence based on time spent in remand custody.
Ratio Decidendi
The court found that the period the applicant spent in remand custody was already considered during the appeal, where the sentence was reduced from twenty to fifteen years. The judge on appeal explicitly stated that the remand period was taken into account. Therefore, there was no basis for further sentence review, and the application lacked merit.
Court Disposition
application dismissed
Orders
- The application for sentence review is dismissed.
Full Case Text
Judgment text and source record
22 paragraphs
Mwaniki v Republic (Criminal Revision E024 of 2024) [2024] KEHC 10829 (KLR) (17 September 2024) (Ruling)
Neutral citation: [2024] KEHC 10829 (KLR)
Republic of Kenya
In the High Court at Kibera
Criminal Revision E024 of 2024
DR Kavedza, J
September 17, 2024
Between
Michael Mwangi Mwaniki
Applicant
and
Republic
Respondent
Ruling
1. The applicant was charged and convicted for the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual offences Act, No. 3 of 2006. He was sentenced to serve twenty (20) years imprisonment. The sentence was however reduced to fifteen (15) years on appeal before this court in Milimani Criminal Appeal No. 20 of 2018 delivered on 22nd July 2020 to run from the date of conviction and in consideration of the time spent in remand custody.
2. He has filed the present chamber summons seeking sentence review. The grounds raised are that he spent 4 years and 6 months in remand custody which time was not considered by the court.
3. I have considered the application, the affidavit in support and the applicable law. I have also considered the trial court record. The issue for consideration is whether the trial court considered the time the applicant spent in remand custody.
4. The provision to section 333(2) of the Criminal Procedure Code obligates the court to consider the time already spent in custody during sentencing. The court has a duty to consider the period an accused person had remained in custody during sentencing under the proviso to section 333(2) of the Criminal Procedure Code which is couched in mandatory terms. This was acknowledged by the Court of Appeal in Ahamad Abolfathi Mohammed & Another vs. Republic [2018] eKLR and Bethwel Wilson Kibor vs. Republic [2009] eKLR and more recently in the High Court case of Vincent Sila Jona & 87 others vs Kenya Prison Service & 2 others [2021] eKLR.
5. It is therefore clear that it is mandatory that the period which an accused has been held in custody prior to being sentenced be considered in meting out the sentence where it is not hindered by other provisions of the law.
6. From the record of this court, Kimaru J (as he then was) while sitting on appeal categorically stated that the period the applicant was in custody considered and reduced the sentence from twenty years to fifteen years.
7. In the premises, I find that the application is found to be lacking in merit and is dismissed.Orders accordingly.
RULING DATED AND DELIVERED VIRTUALLY THIS 17THDAY OF SEPTEMBER 2024. ............D. KAVEDZAJUDGE