[2024] KEHC 16344 (KLR)
The court found that the applicant was arrested on 8/5/2008 and remained in remand custody throughout his trial, as evidenced by the court register and unchallenged affidavit evidence. The prosecution did not contest these facts. In the absence of the trial court record, the court accepted the available evidence and...
Source-derived case information.
- Citation
- [2024] KEHC 16344 (KLR)
- Parties
- Applicant: Anthony Kibui Ngethe; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E166 of 2021
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Sentence Computation Under Section 333(2) of the Criminal Procedure Code
- Outcome
- application allowed
- Judges
- JM Nang'ea
- Legal Topics
- Sentencing, Remand Custody Credit, Incest Offence, Sexual Offences Act, Sentence Commencement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Anthony Kibui Ngethe
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Sentence Computation Under Section 333(2) of the Criminal Procedure Code
Legal Issues
- 1 Whether the applicant is entitled to have the period spent in remand custody factored into his sentence under section 333(2) of the Criminal Procedure Code.
- 2 Whether the trial court failed to take into account the period the applicant was in custody awaiting trial.
Ratio Decidendi
The court found that the applicant was arrested on 8/5/2008 and remained in remand custody throughout his trial, as evidenced by the court register and unchallenged affidavit evidence. The prosecution did not contest these facts. In the absence of the trial court record, the court accepted the available evidence and held that the applicant was entitled to have the period spent in remand custody credited towards his sentence. Accordingly, the thirty-year prison sentence imposed on the applicant shall be reckoned from the date of his arrest, 8/5/2008, in compliance with section 333(2) of the Criminal Procedure Code.
Court Disposition
application allowed
Orders
- The thirty-year prison sentence imposed on the applicant shall take effect and be reckoned from 8/5/2008, the date of his arrest.
Full Case Text
Judgment text and source record
18 paragraphs
Ngethe v Republic (Miscellaneous Criminal Application E166 of 2021) [2024] KEHC 16344 (KLR) (17 December 2024) (Ruling)
Neutral citation: [2024] KEHC 16344 (KLR)
Republic of Kenya
In the High Court at Nakuru
Miscellaneous Criminal Application E166 of 2021
JM Nang'ea, J
December 17, 2024
Between
Anthony Kibui Ngethe
Applicant
and
Republic
Respondent
Ruling
1. By this undated application the applicant prays for invocation of the provisions of Section 333 (2) of the Criminal Procedure Code to factor in the period he was in remand custody awaiting trial. By affidavit in support of the application, the applicant avers that he was convicted in Nakuru Chief Magistrate’s Criminal Case No. 60 of 2008 of the offence of Incest Contrary to Section 20(1) of the Sexual Offences Act No. 3 of 2006 and sentenced to thirty (30) years imprisonment. Although he does not mention, he filed an appeal to this court vide Criminal Appeal No. 279 of 2009 which was marked as withdrawn on orders of the court issued on 8/8/2018. According to him, he was in remand custody throughout his trial before the lower court.
2. Section 333 (2) of the Criminal Procedure Code in its proviso:“where a person sentenced under Sub Section (1), has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.”
3. The Prosecution Counsel (Ms Sang) by a brief oral reply does not object to the application in so far as compliance with the provisions of section 333 (2) supra is concerned.1. The applicant implies that the lower court did not take into account the period he was in custody awaiting trial, in sentencing him . The trial court’s record has, however, gone missing and couldn’t be retrieved for the court’s perusal to confirm the applicant’s claim, despite sufficient time being given to the court’s registry. Extracts from the relevant register availed to the court show that the applicant was arrested on 8/5/2008. According to the Prosecution Counsel, the police record, which were not produced in court, corroborate the court’s register’s information.2. The Prosecution Counsel has not refuted the applicant’s affidavit evidence that he was in remand custody during the period of his trial from the date of his arrest on 8/5/2008, which date is not contested.3. I accordingly agree with the applicant that he was entitled to the benefit of the stated provisions of section 333(2) of the Criminal Procedure Code. It is directed that the 30 years prison sentence imposed shall take effect and be reckoned from 8/5/2008 when he was arrested.4. The application is therefore allowed.
J. M. NANG’EA, JUDGE.RULING DELIVERED THIS 17TH DAY OF DECEMBER, 2024 IN THE PRESENCE OF:The Prosecution Counsel, Ms SangThe ApplicantThe Court Assistant, Mr LepikasJ. M. NANG’EA, JUDGE.