[2024] KEHC 12389 (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 three months and ten days, which was not deducted from his sentence....
Source-derived case information.
- Citation
- [2024] KEHC 12389 (KLR)
- Parties
- Applicant: Jared Otieno Oyugi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kibera
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 144 of 2024
- Procedural Posture
- Criminal Revision / Ruling on Application for Sentence Revision
- Outcome
- application allowed
- Judges
- DR Kavedza
- Legal Topics
- Sentencing Principles, Remand Custody Credit, Criminal Revision, Penal Code Offences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jared Otieno Oyugi
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Sentence Revision
Legal Issues
- 1 Whether the trial court erred by failing to consider the time the applicant spent in remand custody when computing 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 was in remand for three months and ten days, which was not deducted from his sentence. The High 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. Consequently, the sentence was ordered to 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 three (3) months and ten (10) days spent in remand custody during his trial.
Full Case Text
Judgment text and source record
23 paragraphs
Oyugi v Republic (Criminal Revision 144 of 2024) [2024] KEHC 12389 (KLR) (15 October 2024) (Ruling)
Neutral citation: [2024] KEHC 12389 (KLR)
Republic of Kenya
In the High Court at Kibera
Criminal Revision 144 of 2024
DR Kavedza, J
October 15, 2024
Between
Jared Otieno Oyugi
Applicant
and
Republic
Respondent
Ruling
1. The applicant was charged and convicted for two counts of offences: stealing from a locked motor vehicle contrary to section 279(g) of the Penal Code and Malicious damage to property contrary to section 339(1) of the Penal Code. He was sentenced to serve 2 years imprisonment in count I and 1 year imprisonment in Count II. The sentences are running concurrently.
2. He filed an affidavit in support of his motion. 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 14th November 2023 and was never released on bond until his conviction on 22nd February 2024. He, therefore, spent 3 months and 10 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 three (3) months and ten (10) days spent in remand custody during his trial.Orders accordingly.
RULING DATED AND DELIVERED VIRTUALLY THIS 15THOCTOBER 2024______________D. KAVEDZAJUDGE