[2023] KEHC 2583 (KLR)
The trial court erred by failing to consider the period the applicant spent in remand custody when imposing sentence, as required by section 333(2) of the Criminal Procedure Code. The High Court, exercising its revisionary jurisdiction, held that the applicant is entitled to have the period of 2 years, 8 months, and...
Source-derived case information.
- Citation
- [2023] KEHC 2583 (KLR)
- Parties
- Applicant: Shem Makori Onserio; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E015 of 2020
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Sentence Revision
- Outcome
- application allowed; sentence revised
- Judges
- JN Onyiego
- Legal Topics
- Sentence Revision, Remand Custody Credit, Robbery With Violence, Sentencing Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Shem Makori Onserio
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Sentence Revision
Legal Issues
- 1 Whether the trial court erred by failing to consider the period spent in remand custody when sentencing the applicant.
- 2 Whether the applicant is entitled to have the remand period deducted from his sentence under section 333(2) of the Criminal Procedure Code.
Ratio Decidendi
The trial court erred by failing to consider the period the applicant spent in remand custody when imposing sentence, as required by section 333(2) of the Criminal Procedure Code. The High Court, exercising its revisionary jurisdiction, held that the applicant is entitled to have the period of 2 years, 8 months, and 20 days spent in remand custody deducted from the 15-year sentence for robbery with violence. The court emphasized that while sentencing discretion lies with the trial court, failure to apply mandatory statutory provisions constitutes an error warranting appellate intervention. Accordingly, the sentence was revised to reflect the deduction of the remand period.
Court Disposition
application allowed; sentence revised
Orders
- The period spent in remand custody by the applicant shall be taken into account when computing the sentence.
- The applicant shall serve 15 years less 2 years, 8 months, and 20 days.
Full Case Text
Judgment text and source record
19 paragraphs
Onserio v Republic (Miscellaneous Criminal Application E015 of 2020) [2023] KEHC 2583 (KLR) (27 March 2023) (Ruling)
Neutral citation: [2023] KEHC 2583 (KLR)
Republic of Kenya
In the High Court at Garissa
Miscellaneous Criminal Application E015 of 2020
JN Onyiego, J
March 27, 2023
Between
Shem Makori Onserio
Applicant
and
Republic
Respondent
Ruling
1. Vide a Notice of Motion filed on 29-12-2020, brought pursuant to section 349 of the Criminal Procedure Code, the applicant seeks revision of the sentence of 15 years imposed on 22-10-2020 by Hon. T. Ole Tanchu for the offence of robbery with violence contrary to section 296 (2) of Penal code.
2. According to the applicant, the period he spent in remand custody was not considered. The state does not oppose the application.
3. The applicant took plea on 15-2-2018. He remained in custody up to the date of his sentence on 22-10-2020. In his sentence, the court did not factor in the period spent in remand custody pursuant to section 333 (2) of the Criminal Procedure Code. I am alive to the fact that Sentencing is a matter of discretion of the trial court to which this court in its appellate capacity will not interfere with unless the trial court applies wrong legal principles. In this case, the court erred by not considering the period spent in remand in custody.
4. Accordingly, the application is allowed and the period spent in remand custody be taken into account when computing sentence. To that extent, the applicant shall serve 15 years less 2 years, 8 months and 20 days.Right of appeal 14 days.
RULING READ, DELIVERED IN OPEN COURT THIS…27TH DAY OF …MARCH…………, 2023. J. N. ONYIEGOJUDGEIn the Presence of:Mr. Kihara for the state.Martin/ Mohamed- Court Assistants.Applicant - present in personJ.N. ONYIEGOJUDGE