[2024] KEHC 5688 (KLR)
The court found that Section 333(2) of the Criminal Procedure Code obligates sentencing courts to account for time spent in custody prior to conviction. The applicant was in custody from 03/03/2014 (date of re-arrest after absconding) until sentencing on 10/07/2015. The trial court did not expressly consider this...
Source-derived case information.
- Citation
- [2024] KEHC 5688 (KLR)
- Parties
- Applicant: Joshua Oganga; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kilgoris
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E019 of 2022
- Procedural Posture
- Miscellaneous Criminal Application / Revision From Original Conviction/sentence in Criminal Case No. 1050 of 2013
- Outcome
- application partly allowed
- Judges
- F Gikonyo
- Legal Topics
- Sentencing Principles, Time Spent in Custody, Fair Trial Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joshua Oganga
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Revision From Original Conviction/sentence in Criminal Case No. 1050 of 2013
Legal Issues
- 1 Whether the trial court considered the period the applicant spent in custody prior to sentencing as required by Section 333(2) of the Criminal Procedure Code.
- 2 Whether the applicant is entitled to have his sentence computed from the date of re-arrest.
Ratio Decidendi
The court found that Section 333(2) of the Criminal Procedure Code obligates sentencing courts to account for time spent in custody prior to conviction. The applicant was in custody from 03/03/2014 (date of re-arrest after absconding) until sentencing on 10/07/2015. The trial court did not expressly consider this period. The High Court held that, to enforce the applicant's right to an appropriate sentence and to avoid excessive punishment, the sentence should run from the date of re-arrest. The application therefore succeeded to the extent that the applicant's 20-year sentence is to be computed from 03/03/2014, not the date of sentencing.
Court Disposition
application partly allowed
Orders
- The 20 years’ imprisonment imposed on 10/07/2015 shall run from 03/03/2014, being the date of re-arrest.
Full Case Text
Judgment text and source record
27 paragraphs
Oganga v Republic (Miscellaneous Criminal Application E019 of 2022) [2024] KEHC 5688 (KLR) (8 May 2024) (Judgment)
Neutral citation: [2024] KEHC 5688 (KLR)
Republic of Kenya
In the High Court at Kilgoris
Miscellaneous Criminal Application E019 of 2022
F Gikonyo, J
May 8, 2024
Between
Joshua Oganga
Applicant
and
Republic
Respondent
(Revision from Original Conviction/Sentence in Criminal Case No. 1050 of 2013 of the Principal Magistrate’s Court at Kilgoris delivered on 10/07/2015 by Hon. A.K.Mokoross (S.R.M)))
Judgment
Time spent in custody 1. The Applicant’s undated application filed on 29/11/2022 is seeking for orders that time spent in custody prior to conviction be considered pursuant to Section 333(2) of the Criminal Procedure Code, Articles 19(2), 20(2), 21(1), 28, 159(1)(a), (b) and d) of the Constitution.
2. The applicant was convicted of defilement contrary to Section 8 (1) as read with Section 8 (2) of the Sexual Offences Act No 3 of 2006. He was sentenced to serve 20 years’ imprisonment on 10/07/2015.
Applicant’s submission 3. The Applicant submitted that his only prayer is that time spent in custody be considered in his sentence.
Prosecution’s submission 4. Mr. Okeyo urged this court to check the record to establish whether Section 333(2) of the CPC was considered.
Analysis and Determination 5. In passing sentence, ‘…where the person sentenced… has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.’(Proviso to Section 333(2) of the Criminal Procedure Code)
6. The purport of section 333(2) of the CPC is explained in the Judiciary Sentencing Policy Guidelines (under clauses 7. 10 and 7. 11) as follows:‘The provision to Section 333 (2) of the Criminal Procedure Code obligates the court to consider 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. As Section 333(2) of the CPC avoids ‘excessive punishment that is not proportional to the offence committed’, pertains to a fair trial. Thus, the policy of law- and the courts- insists on the section being given real and full effect (Ahamad Abolfathi Mohammed &anotherv Republic [2018] eKLR, and Bethwel Wilson Kibor v Republic [2009] eKLR).
Applying the test 8. From the record of the trial court, the following relevant dates are discernible; the accused was arraigned in court on 06/12/2013 and was sentenced on 10/07/2015 to 20 years’ imprisonment in count I and 10 years’ imprisonment in count II. The sentences were to run concurrently.
9. The applicant was released on bond on 02/01/2014. However, he absconded and was arrested on 03/3/2014. The applicant remained in custody until sentencing.
10. In the circumstances of this case, the path that promotes enforcement of the right to appropriate sentence, is for the sentence to run from the date he was re-arrested in court.
Conclusions and orders 11. The upshot is that the instant application succeeds only to the extent that the sentence herein will run from the date of re-arrest. In specific terms: -i.The 20 years’ imprisonment imposed on 10/07/2015 shall run from 03/03/2014 being the date of re-arrest.
DATED, SIGNED, AND DELIVERED AT KILGORIS THROUGH MICROSOFT TEAMS ONLINE APPLICATION THIS 8TH DAY OF MAY, 2024. …………………………………HON. F. GIKONYO M.JUDGEIn the presence of: -ApplicantOkeyo for DPPLeken C/A