[2024] KEHC 12168 (KLR)
The court found that the trial court failed to consider the period the applicant spent in remand custody, as required by section 333(2) of the Criminal Procedure Code. The law is clear and mandatory that such period must be taken into account when passing sentence, unless otherwise precluded by law. The applicant...
Source-derived case information.
- Citation
- [2024] KEHC 12168 (KLR)
- Parties
- Applicant: Boss Misiko Okonda; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kibera
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 252 of 2024
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Sentence
- Outcome
- application allowed
- Judges
- DR Kavedza
- Legal Topics
- Sentencing Principles, Defilement Offence, Remand Custody Credit, Sexual Offences Act, Criminal Procedure Code
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Boss Misiko Okonda
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the trial court erred by failing to consider the period the applicant spent in remand custody when computing the sentence.
- 2 Whether the applicant is entitled to have the sentence revised to account for time spent in custody.
Ratio Decidendi
The court found that the trial court failed to consider the period the applicant spent in remand custody, as required by section 333(2) of the Criminal Procedure Code. The law is clear and mandatory that such period must be taken into account when passing sentence, unless otherwise precluded by law. The applicant was in custody from 11th June 2023 until his conviction on 15th July 2024, and this period was not credited against his sentence. The failure to do so amounted to a denial of a statutory right. Accordingly, the court allowed the application and ordered that the applicant's fifteen-year sentence be computed from the date of arrest, 11th June 2023.
Court Disposition
application allowed
Orders
- The sentence of fifteen years imprisonment shall be computed from 11th June 2023, the date of the applicant’s arrest, pursuant to section 333(2) of the Criminal Procedure Code, Cap 75 Laws of Kenya.
Full Case Text
Judgment text and source record
21 paragraphs
Okonda v Republic (Criminal Revision 252 of 2024) [2024] KEHC 12168 (KLR) (14 October 2024) (Ruling)
Neutral citation: [2024] KEHC 12168 (KLR)
Republic of Kenya
In the High Court at Kibera
Criminal Revision 252 of 2024
DR Kavedza, J
October 14, 2024
Between
Boss Misiko Okonda
Applicant
and
Republic
Respondent
Ruling
1. The applicant was charged and convicted for the offence of defilement contrary to section 8 (1) as read with section 8(4) of the Sexual Offences Act, No. 3 of 2006. He was sentenced to serve fifteen (15) 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 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.
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 11th June 2023. He was never released on bond until his conviction on 15th July 2024. 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 fifteen years imprisonment shall be computed from 11th June 2023 the date of the applicant’s arrest pursuant to section 333(2) of the Criminal Procedure Code, Cap 75 Laws of Kenya.Orders accordingly.
RULING DATED AND DELIVERED VIRTUALLY THIS 14THOCTOBER 2024D. KAVEDZAJUDGE