[2024] KEHC 12478 (KLR)
The court found that the trial court failed to consider the period the applicant spent in remand custody prior to sentencing, as required by section 333(2) of the Criminal Procedure Code. The applicant was in remand for one year, nine months, and seven days, which was not deducted from his sentence. The court held...
Source-derived case information.
- Citation
- [2024] KEHC 12478 (KLR)
- Parties
- Applicant: Paul Ouma Obonyo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kibera
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 256 of 2024
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Sentence
- Outcome
- application allowed
- Judges
- DR Kavedza
- Legal Topics
- Sentencing Principles, Remand Custody Credit, Revision Jurisdiction, Robbery With Violence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Ouma Obonyo
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the trial court failed to consider the time spent in remand custody when computing the applicant's sentence.
- 2 Whether the applicant is entitled to have his sentence revised to account for 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 prior to sentencing, as required by section 333(2) of the Criminal Procedure Code. The applicant was in remand for one year, nine months, and seven days, which was not deducted from his sentence. The court held that this omission was a violation of a mandatory legal obligation and that the applicant was entitled to have his sentence revised to account for the time spent in custody. The application for revision was allowed, and the sentence was ordered to be computed less the remand period.
Court Disposition
application allowed
Orders
- The sentence imposed on the applicant shall be computed less by one year, nine months, and seven days spent in remand custody during his trial.
Full Case Text
Judgment text and source record
23 paragraphs
Obonyo v Republic (Criminal Revision 256 of 2024) [2024] KEHC 12478 (KLR) (15 October 2024) (Ruling)
Neutral citation: [2024] KEHC 12478 (KLR)
Republic of Kenya
In the High Court at Kibera
Criminal Revision 256 of 2024
DR Kavedza, J
October 15, 2024
Between
Paul Ouma Obonyo
Applicant
and
Republic
Respondent
Ruling
1. The applicant was charged and convicted for the offence of robbery with violence contrary to section 296 of the Penal Code. He was sentenced to serve 20 years imprisonment. His appeal to this court was dismissed vide Nairobi Criminal Appeal no. 221 of 2019. He has now filed an application seeking revision of sentence.
2. He filed an affidavit in support of his motion. The arguments raised are that the trial court failed to consider the time he spent in remand custody during the computation of 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 9th November 2017 and was never released on bail/bond. He was convicted on 16th August 2019. He, therefore, spent one (1) year, nine (9) months and seven (7) 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 one (1) year, nine (9) months and seven (7) days spent in remand custody during his trial.Orders accordingly.
RULING DATED AND DELIVERED VIRTUALLY THIS 15THOCTOBER 2024D. KAVEDZAJUDGE