[2024] KEHC 12482 (KLR)
The court found that the trial court failed to comply with the mandatory requirement under section 333(2) of the Criminal Procedure Code to consider the period the applicant spent in remand custody before sentencing. The applicant was in remand for one month, which was not deducted from the sentence imposed. The...
Source-derived case information.
- Citation
- [2024] KEHC 12482 (KLR)
- Parties
- Applicant: Wilfred Onyango Opiyo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kibera
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E119 of 2024
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Sentence
- Outcome
- application allowed
- Judges
- DR Kavedza
- Legal Topics
- Sentencing Principles, Remand Custody Credit, Sexual Offences, Defilement, Criminal Procedure, Revision Jurisdiction
- 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
Wilfred Onyango Opiyo
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 comply with the mandatory requirement under section 333(2) of the Criminal Procedure Code to consider the period the applicant spent in remand custody before sentencing. The applicant was in remand for one month, which was not deducted from the sentence imposed. The failure to account for this period was a legal error, and the applicant was entitled to have the sentence revised accordingly. The court therefore allowed the application and ordered that the sentence be reduced by one month to reflect the time already served in remand custody.
Court Disposition
application allowed
Orders
- The sentence imposed on the applicant shall be computed less by one month spent in remand custody during his trial.
Full Case Text
Judgment text and source record
23 paragraphs
Opiyo v Republic (Criminal Revision E119 of 2024) [2024] KEHC 12482 (KLR) (15 October 2024) (Ruling)
Neutral citation: [2024] KEHC 12482 (KLR)
Republic of Kenya
In the High Court at Kibera
Criminal Revision E119 of 2024
DR Kavedza, J
October 15, 2024
Between
Wilfred Onyango Opiyo
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 8(2) of the Sexual Offences Act, No. 3 of 2006. He was sentenced to serve 20 years imprisonment. He has now filed an application seeking revision of sentence.
2. 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.
3. 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.
4. The proviso to section 333 (2) of the Criminal Procedure Code obligates the court to take into account 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.
5. It is therefore clear that it is mandatory that the period which an accused has been held in custody prior to being sentenced be taken into account in meting out the sentence where it is not hindered by other provisions of the law.
6. From the record, the applicant was arrested on 23rd February 2019 and was released on bond on 21st March 2019. He, therefore, spent one month in remand custody. From the record, that the period was not factored in during his sentencing.
7. 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.
8. I thus allow the application and order that the sentence imposed shall be computed less by one month spent in remand custody during his trial.
Orders accordingly.RULING DATED AND DELIVERED VIRTUALLY THIS 15THOCTOBER 2024. ............................D. KAVEDZAJUDGE