[2022] KEHC 12890 (KLR)
The court found that the applicant was in remand custody during the trial and that the sentencing court did not expressly state that the period spent in custody was considered. This omission constituted an irregularity. Section 333(2) of the Criminal Procedure Code and the Judiciary Sentencing Policy Guidelines...
Source-derived case information.
- Citation
- [2022] KEHC 12890 (KLR)
- Parties
- Applicant: Joseph Kinyanjui Ng’ang’a; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Naivasha
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E102 of 2021
- Procedural Posture
- Miscellaneous Criminal Application / Sentence Review
- Outcome
- application_allowed
- Judges
- LN Mutende
- Legal Topics
- Sentence Review, Remission of Sentence, Time Spent in Custody, Sexual Offences, Revisionary Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Kinyanjui Ng’ang’a
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Sentence Review
Legal Issues
- 1 Whether the applicant is entitled to have the period spent in custody prior to sentencing considered in the computation of his sentence.
- 2 Whether the trial court erred by failing to expressly take into account the period the applicant spent in remand custody before sentencing.
Ratio Decidendi
The court found that the applicant was in remand custody during the trial and that the sentencing court did not expressly state that the period spent in custody was considered. This omission constituted an irregularity. Section 333(2) of the Criminal Procedure Code and the Judiciary Sentencing Policy Guidelines obligate courts to take into account the period spent in custody when passing sentence. The High Court, exercising its revisionary jurisdiction, held that the applicant's sentence should be computed from the date of arrest, thereby remedying the irregularity and ensuring the sentence is proportionate and lawful.
Court Disposition
application_allowed
Orders
- The applicant's sentence shall run from the date of arrest, May 17, 2015.
Full Case Text
Judgment text and source record
24 paragraphs
Ng’ang’a v Republic (Miscellaneous Criminal Application E102 of 2021) [2022] KEHC 12890 (KLR) (6 September 2022) (Ruling)
Neutral citation: [2022] KEHC 12890 (KLR)
Republic of Kenya
In the High Court at Naivasha
Miscellaneous Criminal Application E102 of 2021
LN Mutende, J
September 6, 2022
Between
Joseph Kinyanjui Ng’ang’a
Applicant
and
Republic
Respondent
Ruling
1. Joseph Kinyanjui Ng’ang’a, the applicant, was convicted for the offence of rape contrary to section 3(1) (a) (c) (3) of the Sexual Offences Act.
2. Following the conviction the applicant was sentenced serve ten (10) years imprisonment.
3. Through an application filed herein on April 13, 2021, the applicant seeks review of the sentence. He seeks this court’s intervention pursuant to the provisions of section 333(2) of the Criminal Procedure Code.
4. The power of this court in its revisionary jurisdiction is founded under section 362 of theCriminal Procedure code, the law enacts that:“The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.’’
5. Section 333 (2) of the Criminal Procedure Code provides that:“(2)Subject to the provisions of section 38 of the Penal Code (cap 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this code.Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.”
6. The Judiciary sentencing policy guidelines provide that:“The proviso to section 333(2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody if the convicted person had been in custody during the trial. Failure to do so impacts on the overall period of detention which may result in an excessive punishment that is not proportional to the offence committed. In determining the period of imprisonment that should be served by an offender, the court must take into account the period in which the offender was held in custody during the trial.”
7. The record confirms that the applicant was in remand during trial and the court did not expressly state that the period spent in custody prior to sentencing was taken into account; this was an irregularity that warrants revision.
8. In the premises, the application succeeds. The applicant will serve the sentence with effect from the date of arrest, the May 17, 2015.
9. It is so ordered.
DELIVERED AND SIGNED AT NAIVASHA THIS 6TH DAY OF SEPTEMBER 2022. L. MUTENDEJUDGE