[2025] KEHC 2184 (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 had been in custody for two years, one month, and twenty-three days prior to...
Source-derived case information.
- Citation
- [2025] KEHC 2184 (KLR)
- Parties
- Applicant: Gregory Otieno; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kibera
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 281 of 2024
- Procedural Posture
- Criminal Revision / Ruling on Sentence Review Application
- Outcome
- application allowed
- Judges
- DR Kavedza
- Legal Topics
- Sentencing Principles, Remand Custody Credit, Sentence Review, Penal Code Section 234
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gregory Otieno
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Sentence Review Application
Legal Issues
- 1 Whether the trial court erred by failing to consider the period the applicant spent in remand custody when passing sentence.
- 2 Whether the applicant is entitled to have his sentence reduced by the period spent in remand 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 had been in custody for two years, one month, and twenty-three days prior to conviction, and this period was not deducted from the five-year sentence imposed. The court held that failure to account for this period would amount to a denial of the applicant's statutory right and a failure by the court to discharge its legal obligation. Accordingly, the court allowed the application and ordered that the sentence be computed less the period spent in remand custody.
Court Disposition
application allowed
Orders
- The sentence imposed on the applicant shall be computed less by two years, one month, and twenty-three days spent in remand custody during his trial.
Full Case Text
Judgment text and source record
23 paragraphs
Otieno v Republic (Criminal Revision 281 of 2024) [2025] KEHC 2184 (KLR) (17 February 2025) (Ruling)
Neutral citation: [2025] KEHC 2184 (KLR)
Republic of Kenya
In the High Court at Kibera
Criminal Revision 281 of 2024
DR Kavedza, J
February 17, 2025
Between
Gregory Otieno
Applicant
and
Republic
Respondent
Ruling
1. The applicant was charged and convicted of the offence of grievous harm contrary to section 234 of the Penal Code. The applicant was sentenced to 5 years imprisonment.
2. He filed the present notice of motion application seeking sentence review. The application is supported by an affidavit sworn by the applicant. The arguments raised are that the trial court failed to consider the time he spent in remand 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 August 2022, and was never released on bail until his conviction on 17th October 2024. He, therefore, spent two (2) years one (1) month and twenty-three (23) days 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 two (2) years one (1) month and twenty-three (23) days spent in remand custody during his trial.Orders accordingly.
RULING DATED AND DELIVERED VIRTUALLY THIS 17TH FEBRUARY 2025D. KAVEDZAJUDGE