[2025] KEHC 6882 (KLR)

[2025] KEHC 6882 (KLR)

The court found that the trial court erred by failing to discount the four months the applicant spent in custody before being released on bond, as required by section 333(2) of the Criminal Procedure Code. The court held that the applicant is entitled to have this period deducted from his 15-year sentence. However, the court determined that it has no power to substitute the mandatory minimum sentence for defilement under the Sexual Offences Act with an alternative sentence, as the law prescribes a minimum term of imprisonment. The Supreme Court's decision in Muruatetu does not apply to mandatory minimum sentences under the Sexual Offences Act. Accordingly, only the period spent in custody...

Citation
[2025] KEHC 6882 (KLR)
Parties
Appellant: Francisco Chengo Mwashe; Respondent: Republic
Court
High Court
Court Station
High Court at Garsen
Jurisdiction
Kenya
Judgment Date
13 May 2025
Case Number
Miscellaneous Criminal Application E043 of 2024
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Sentence Commencement and Alternative Sentence
Outcome
Application partly allowed.
Judges
JN Njagi
Legal Topics
Sentencing Principles, Credit for Time Served, Sexual Offences, Mandatory Minimum Sentences
Source Language
English
Criminal Law Sentencing Principles Credit for Time Served Sexual Offences Mandatory Minimum Sentences

Case Brief

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Parties

Francisco Chengo Mwashe

Appellant

Republic

Respondent

Procedural Posture

Miscellaneous Criminal Application / Ruling on Application for Sentence Commencement and Alternative Sentence

Legal Issues

  1. 1 Whether the applicant is entitled to have the period spent in pre-sentence custody discounted from his sentence.
  2. 2 Whether the court can substitute the mandatory minimum sentence for defilement with an alternative sentence such as probation, community service, or a fine.

Ratio Decidendi

The court found that the trial court erred by failing to discount the four months the applicant spent in custody before being released on bond, as required by section 333(2) of the Criminal Procedure Code. The court held that the applicant is entitled to have this period deducted from his 15-year sentence. However, the court determined that it has no power to substitute the mandatory minimum sentence for defilement under the Sexual Offences Act with an alternative sentence, as the law prescribes a minimum term of imprisonment. The Supreme Court's decision in Muruatetu does not apply to mandatory minimum sentences under the Sexual Offences Act. Accordingly, only the period spent in custody...

Court Disposition

Application partly allowed.

Orders

  • The applicant's sentence of 15 years imprisonment shall be discounted by the period of 4 months spent in custody before being granted bond.
  • The remainder of the application, including the request for alternative sentence, is dismissed.