[2025] KEHC 2707 (KLR)
The court found that the trial court failed to consider the period the applicant spent in remand custody, which is a mandatory requirement under section 333(2) of the Criminal Procedure Code. The applicant was in remand from 23rd October 2013 to 19th October 2016, totaling two years, eleven months, and twenty-six...
Source-derived case information.
- Citation
- [2025] KEHC 2707 (KLR)
- Parties
- Applicant: James Kibue Ngumbaru; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kibera
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E018 of 2025
- Procedural Posture
- Miscellaneous Criminal Application / Sentence Review Ruling
- Outcome
- application allowed
- Judges
- DR Kavedza
- Legal Topics
- Sentencing Review, Remand Custody Credit, Robbery With Violence, Imitation Firearm Possession
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Kibue Ngumbaru
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Sentence Review Ruling
Legal Issues
- 1 Whether the trial court considered the period the applicant spent in remand custody when computing the sentence.
- 2 Whether the applicant is entitled to have the sentence reduced by the period spent in remand custody.
Ratio Decidendi
The court found that the trial court failed to consider the period the applicant spent in remand custody, which is a mandatory requirement under section 333(2) of the Criminal Procedure Code. The applicant was in remand from 23rd October 2013 to 19th October 2016, totaling two years, eleven months, and twenty-six days. Since this period was not factored into the original sentence, the High Court held that the applicant is entitled to have his sentence reduced by that duration. The court emphasized that failure to comply with this statutory obligation would amount to a denial of the applicant's rights and a failure by the court to discharge its legal duty.
Court Disposition
application allowed
Orders
- The sentence imposed on the applicant shall be computed less by two years, eleven months, and twenty-six days pursuant to section 333(2) of the Criminal Procedure Code.
Full Case Text
Judgment text and source record
23 paragraphs
Ngumbaru v Republic (Miscellaneous Criminal Application E018 of 2025) [2025] KEHC 2707 (KLR) (11 March 2025) (Ruling)
Neutral citation: [2025] KEHC 2707 (KLR)
Republic of Kenya
In the High Court at Kibera
Miscellaneous Criminal Application E018 of 2025
DR Kavedza, J
March 11, 2025
Between
James Kibue Ngumbaru
Applicant
and
Republic
Respondent
Ruling
1. The applicant was charged and convicted of the offence of robbery with violence contrary to section 296(2) of the Penal Code; Possession of an imitation firearm section 34(1) of the Firearms Act and possession of ammunition contrary to section 89(1) of the Penal Code. The applicant was re- sentenced to serve fifteen (15) years in Count I, two (2) years in Count II and two (2) years in Count III. The sentences are running concurrently from 19th October 2016 the date of his first sentence.
2. He filed the present application and an affidavit in support of his motion seeking sentence review. The arguments raised are that the trial court failed to consider the time he spent in remand custody during the computation of his sentence.
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 proviso to section 333 (2) of the Criminal Procedure Code obligates the court to take into account the time already spent in custody. The duty to take in account the period an accused person had remained in custody in sentencing under the proviso to section 333(2) of the Criminal Procedure Code which is couched in mandatory terms 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 taken into account in meting out the sentence where it is not hindered by other provisions of the law.
6. From the record, the applicant was arrested on 23rd October 2013 and was never released on bail/bond until his conviction and sentence on 19th October 2016. He, therefore, spent two (2) years, eleven (11) months and twenty-six(26) days in remand custody. From the record, that the period was not factored in during his sentencing.
7. Guided by the law, the court is of the view that the application ought to be considered, as failure to do so would amount to denying the applicant a right due to the failure of the court to discharge an obligation bestowed upon it by law.
8. I thus allow the application and order that the sentence imposed shall be computed less by two (2) years, eleven (11) months and twenty-six (26) days pursuant to section 333(2) of the Criminal Procedure Code.Orders accordingly.
RULING DATED AND DELIVERED VIRTUALLY THIS 11THDAY OF MARCH 2025______________D. KAVEDZAJUDGE