[2022] KEHC 10944 (KLR)
The court held that section 333(2) of the Criminal Procedure Code mandates that the period an accused person spends in custody prior to sentencing must be deducted from the sentence imposed. The court cited appellate authority clarifying that it is not sufficient for a sentencing court to merely state that it has...
Source-derived case information.
- Citation
- [2022] KEHC 10944 (KLR)
- Parties
- Applicant: Hesbone Mohammed Clement Onchonga; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application E002 of 2022
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Sentence Computation
- Outcome
- application allowed
- Judges
- AN Ongeri
- Legal Topics
- Sentence Computation, Pretrial Custody Deduction, Criminal Procedure Code Section 333 2
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hesbone Mohammed Clement Onchonga
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Sentence Computation
Legal Issues
- 1 Whether the period the applicant spent in pre-sentence custody should be deducted from the sentence imposed.
- 2 Whether the sentence should be deemed to commence from the date of first remand or the date of sentencing.
Ratio Decidendi
The court held that section 333(2) of the Criminal Procedure Code mandates that the period an accused person spends in custody prior to sentencing must be deducted from the sentence imposed. The court cited appellate authority clarifying that it is not sufficient for a sentencing court to merely state that it has considered the period spent in custody; the sentence must be reduced accordingly. In this case, the applicant was remanded from October 24, 2018, and sentenced on June 3, 2019. The court found that the applicant's sentence should be deemed to have commenced on the date he was first remanded, not the date of sentencing, thereby ensuring compliance with the statutory and...
Court Disposition
application allowed
Orders
- The sentence imposed on the applicant shall commence from October 24, 2018, the date of first remand, and not from June 3, 2019, the date of sentencing.
Full Case Text
Judgment text and source record
23 paragraphs
Onchonga v Republic (Miscellaneous Application E002 of 2022) [2022] KEHC 10944 (KLR) (17 June 2022) (Ruling)
Neutral citation: [2022] KEHC 10944 (KLR)
Republic of Kenya
In the High Court at Kericho
Miscellaneous Application E002 of 2022
AN Ongeri, J
June 17, 2022
Between
Hesbone Mohammed Clement Onchonga
Applicant
and
Republic
Respondent
Ruling
1. The Applicant filed the undated Application on 15/1/2022 seeking to have the period he was remanded in custody deducted from the sentence meted against him.
2. The Applicant was sentenced to seven (7) years imprisonment for burglary and stealing contrary to section 304 as well as section 279 (b) of the penal code.
3. The Applicant was arraigned in court on October 24, 2018 and sentenced on 3/6/2019 after a period of eight months.
4. The period the Applicant was in custody ought to be deducted from the seven years imprisonment term meted against the Applicant.
5. Section 333 (2) of the Criminal Procedure Code provides 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.”
6. The court of appeal in Bethwel Wilson KiborvRepublic [2009] eKLR, stated as follows: -“By proviso to section 333(2) of Criminal Procedure Code where a person sentenced has been held in custody prior to such sentence, the sentence shall take account of the period spent in custody.”
7. In Ahamad Abolfathi Mohammed & AnothervRepublic [2018], the court of appeal expressed itself as follows: -““Taking into account” the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody. It is not enough for the court to merely state that it has taken into account the period already spent in custody and still order the sentence to run from the date of the conviction because that amounts to ignoring altogether the period already spent in custody. It must be remembered that the proviso to section 333(2) of the Criminal Procedure Code was introduced in 2007 to give the court power to include the period already spent in custody in the sentence that it metes out to the accused person.”
8. I allow the Application filed on 15/1/2022 and direct that sentence starts to run from October 24, 2018 and not 3/6/2019.
DELIVERED, DATED AND SIGNED AT KERICHO THIS 17TH DAY OF JUNE 2022. A. N. ONGERIJUDGE