[2021] KEHC 7122 (KLR)
The court found that the trial magistrate, during the sentencing proceedings, duly considered both the mitigation offered by the applicants and the period they had spent in custody awaiting trial. The offences for which the applicants were convicted could attract a death sentence, but the trial court imposed a...
Source-derived case information.
- Citation
- [2021] KEHC 7122 (KLR)
- Parties
- Applicant: Otieno Wandera Yonah; Applicant: Victor Akumu Masikanya; Respondent: Director of Public Prosecutions
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 280 of 2019
- Procedural Posture
- Criminal Revision / Ruling on Application for Sentence Review Under Section 333(2) of the Criminal Procedure Code
- Outcome
- application dismissed
- Judges
- DO Ogembo
- Legal Topics
- Sentencing Review, Pretrial Custody Credit, Application of Section 333 2, Mitigation, Imprisonment Terms
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Otieno Wandera Yonah
Applicant
Victor Akumu Masikanya
Applicant
Director of Public Prosecutions
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Sentence Review Under Section 333(2) of the Criminal Procedure Code
Legal Issues
- 1 Whether the period of 1 year, 7 months spent in custody by the applicants prior to sentencing should be credited towards their sentence under section 333(2) of the Criminal Procedure Code.
- 2 Whether the trial court considered the period spent in custody when passing sentence.
Ratio Decidendi
The court found that the trial magistrate, during the sentencing proceedings, duly considered both the mitigation offered by the applicants and the period they had spent in custody awaiting trial. The offences for which the applicants were convicted could attract a death sentence, but the trial court imposed a lenient sentence of 5 years imprisonment. Since the record showed that the period spent in custody was already taken into account, there was no basis for further review or adjustment of the sentence under section 333(2) of the Criminal Procedure Code. The application was therefore found to lack merit and was dismissed.
Court Disposition
application dismissed
Orders
- The application filed by the applicants on 16.10.2019 is dismissed.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CRIMINAL REVISION NO. 280OF 2019
OTIENO WANDERA YONAH..............................................................................1ST APPLICANT
VICTOR AKUMU MASIKANYA....................................................................... 2ND APPLICANT
VERSUS
DIRECTOR OF PUBLIC PROSECUTIONS................................................................REPUBLIC
RULING
The 2 applicants, OTIENO WANDERA YONA and VICTOR AKUMU MASIKANYA jointly filed an application herein on 16. 10. 2019 under certificate of urgency. On the face of it, the applicants did not indicate which provision of the law they came under. They only pleaded for review. However, in the affidavit in support of the application, they have both deponed that the application is brought under section 333(2) of the Criminal Procedure Code. They have asked that the period of 1 year, 7 months they took in custody awaiting trial be accounted for in the sentence.
In opposing the application, counsel for the state, Ms. Chege, submitted that the offences charged attract upto death sentence, whereas the applications were only sentenced to serve 5 years imprisonment. That the court dully considered the period taken in custody. She urged that this application be dismissed. The proviso to section 333(2) of the Criminal Procedure Code states;
“Provided that where the person sentenced under sub-section(1) has prior to such sentence, been in custody, the sentence shall take into account of the period spent in custody.”
I have considered the proceedings of the trial court. The sentencing proceedings of 28. 11. 2018 clearly show that the sentencing the applicants, the trial magistrate duly considered the mitigation of the applicants. The court also considered the period that the applicants had spent in custody awaiting determination of their case.
It is worth noting that whereas the offences for which the applicants were convicted and sentenced could be as severe as death sentence, the applicants were given imprisonment terms of 5 years. I find this to be both legal and lenient.
The court having considered the period the applicant’s spent in custody awaiting trial, I hereby find that this application of the applicants filed herein on 16. 10. 2019 lacks in any merit. I dismiss the same accordingly.
D. O. OGEMBO
JUDGE
11. 5.2021.
Court:
Ruling read out in open court (online) in the presence both 1st and 2nd applicants
D. O. OGEMBO
JUDGE
11. 5.2021.