[2021] KEHC 6218 (KLR)
The court held that although Section 333(2) of the Criminal Procedure Code requires trial courts to consider the period an accused spent in custody prior to sentencing, this benefit is not automatic and must be considered on a case-by-case basis. In this matter, the applicant absconded bail for approximately two...
Source-derived case information.
- Citation
- [2021] KEHC 6218 (KLR)
- Parties
- Applicant: Ombongi Manyara Bernard; Respondent: Director of Public Prosecution
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 110 of 2020
- Procedural Posture
- Miscellaneous Application / Judgment
- Outcome
- application denied
- Judges
- HK Chemitei
- Legal Topics
- Sentencing Procedure, Credit for Time Served, Bail Jumping, Application of Section 333, Custodial Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Ombongi Manyara Bernard
Applicant
Director of Public Prosecution
Respondent
Procedural Posture
Miscellaneous Application / Judgment
Legal Issues
- 1 Whether the trial court erred by failing to consider the period the applicant spent in custody prior to sentencing as required under Section 333(2) of the Criminal Procedure Code.
- 2 Whether the applicant is entitled to have his sentence reduced to account for time spent in custody despite having absconded bail for a significant period.
Ratio Decidendi
The court held that although Section 333(2) of the Criminal Procedure Code requires trial courts to consider the period an accused spent in custody prior to sentencing, this benefit is not automatic and must be considered on a case-by-case basis. In this matter, the applicant absconded bail for approximately two years, only returning to court after significant efforts by the police. The court found that the applicant's conduct, including absconding and causing delays in the proceedings, disqualified him from benefitting from Section 333(2). The trial court was deemed to have been aware of the applicant's misconduct, and the High Court declined to interfere with the sentence. The...
Court Disposition
application denied
Orders
- The application is denied.
- The applicant shall serve the full period of imprisonment as directed by the trial court.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
MISC. CRIMINAL. APP.NO.110 OF 2020.
OMBONGI MANYARA BERNARD...........................................................APPLICANT
VERSUS
DIRECTOR OF PUBLIC PROSECUTION...........................................RESPONDENT
JUDGEMENT.
1. The applicant was convicted and sentence to serve a four years’ imprisonment from 9th April 2020 for an offence of stealing by servant under Criminal Case no. 3254 of 2015. He did not prefer any appeal thereafter. He has filed this application dated 14th September 2020 under the Provisions of Section 333 of the Criminal Procedure Code.
2. In his supporting affidavit he deponed that the trial court did not consider the period he served in custody while he was going through the motions of trial. He said that this was a breach of Section 333(2) of the Criminal Procedure Codewhich he asked this court to remedy.
3. When the application came up for hearing the learned state counsel left it to the discretion of this court.
4. Section 333(2) of the Criminal Procedure Code states as follows;
Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.
Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.
5. The above section compels the trial court to take into consideration the period an accused took while in custody at the time the trial was on. Parliament in my view took into consideration the fact that whichever way the proceedings went on, the fact that an accused was incarcerated meant that he was already serving a term so to speak.
6. The above position however must be considered on a case to case basis. In the instant matter the record showed that the applicant jumped bail from 31st October 2016 till 9th October 2018 a period of about two years. In fact, the proceedings of 9th October 2018 clearly shows the efforts the respondent took to apprehend him.
7. The applicant had nothing to say and this clearly showed that he deliberately absconded and were it not for the efforts of the police he may not have turned up in court. Even before this date the way the matter proceeded was already suspect. The original court file for instance disappeared until a skeleton one was opened. Before this the applicant at some point jumped bail only for the bond to be reinstated when he produced some medical records.
8. All in all, the applicant cannot benefit from the provisions of Section 333 above. The trial court although it may not have indicated, was alive to the mischief played by the applicant. His unexplained disappearance for about two years shows that he was a person of questionable character. By jumping bail, the same was already an offence. Had he been in custody continuously, this court would have considered otherwise.
9. For now, the application is denied. Let the applicant serve the full period as directed by the trial court.
DATED SIGNED AND DELIVERED VIA VIDEO LINK AT NAKURU THIS 14TH JUNE 2021.
H.K. CHEMITEI
JUDGE.