[2024] KEHC 3995 (KLR)
The court found that the trial court failed to consider the period of 7 years and 4 months that the applicant spent in remand custody prior to sentencing, as required by section 333(2) of the Criminal Procedure Code. This omission was a violation of a mandatory legal obligation. The High Court held that the sentence...
Source-derived case information.
- Citation
- [2024] KEHC 3995 (KLR)
- Parties
- Applicant: John Waweru Njoroge; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kibera
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 51 of 2023
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Sentence
- Outcome
- application allowed; sentence revised
- Judges
- DR Kavedza
- Legal Topics
- Sentencing Principles, Remand Custody Credit, Sexual Offences, Incest, Sentence Revision
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Waweru Njoroge
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the trial court considered the time the applicant spent in remand custody when passing sentence.
- 2 Whether failure to consider remand custody time violates section 333(2) of the Criminal Procedure Code.
Ratio Decidendi
The court found that the trial court failed to consider the period of 7 years and 4 months that the applicant spent in remand custody prior to sentencing, as required by section 333(2) of the Criminal Procedure Code. This omission was a violation of a mandatory legal obligation. The High Court held that the sentence must be revised to account for the remand period, substituting the original 20-year sentence with a 15-year sentence, to be further reduced by the time already spent in custody. The court emphasized that failure to consider remand custody time would amount to denying the applicant a right conferred by law.
Court Disposition
application allowed; sentence revised
Orders
- The sentence of 20 years imprisonment is substituted with a sentence of fifteen years imprisonment.
- The sentence of fifteen years imprisonment shall be computed less by 7 years and 4 months, which is to run from the date of conviction.
Full Case Text
Judgment text and source record
21 paragraphs
Njoroge v Republic (Criminal Revision 51 of 2023) [2024] KEHC 3995 (KLR) (9 April 2024) (Ruling)
Neutral citation: [2024] KEHC 3995 (KLR)
Republic of Kenya
In the High Court at Kibera
Criminal Revision 51 of 2023
DR Kavedza, J
April 9, 2024
Between
John Waweru Njoroge
Applicant
and
Republic
Respondent
Ruling
1. The applicant was charged and convicted for the offence of incest contrary to section 20 (1) of the Sexual Offences Act, No. 3 of 2006. He was sentenced to serve twenty (20) years imprisonment. He has now filed an application seeking revision of sentence. He filed an affidavit in support of his motion. The arguments raised are that the trial court failed to consider the time she spent in reman custody during the computation of sentence under the provision of section 333(2) of the Criminal Procedure Code, Cap 75 of the Laws of Kenya.
2. 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.
3. The proviso to section 333(2) of the Criminal Procedure Code obligates the court to consider 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 v. Republic [2018] eKLR and Bethwel Wilson Kibor v. Republic [2009] eKLR and more recently in the High Court case of Vincent Sila Jona & 87 others v Kenya Prison Service & 2 others [2021] eKLR.
4. 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.
5. From the record, the applicant was arrested on 4th May 2016. He was arraigned in court for take plea and was in custody for the entirety of his trial until his conviction on 4th October 2023. He, therefore, spent 7 years 4 months in remand custody. From the record, it is clear that the period was not factored in during his sentencing. 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.
6. I thus allow the application. In the premises, I make the following orders: the sentence of 20 years imprisonment is substituted with a sentence of fifteen years imprisonment. The sentence of fifteen years imprisonment shall be computed less by 7 years and 4 months which is to run from the date of conviction.Orders accordingly.
RULING DATED AND DELIVERED VIRTUALLY THIS 9TH DAY OF APRIL 2024D. KAVEDZAJUDGE