[2021] KEHC 605 (KLR)
The trial court erred by failing to comply with the mandatory provisions of Section 333(2) of the Criminal Procedure Code, which require that the period an accused has spent in pre-trial custody be taken into account when computing the sentence. The applicant was in custody from 11/3/2017 until sentencing on...
Source-derived case information.
- Citation
- [2021] KEHC 605 (KLR)
- Parties
- Applicant: Patrick Mwiti Thuranira; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E232 of 2021
- Procedural Posture
- Criminal Revision / Ruling on Revision
- Outcome
- sentence revised
- Judges
- EM Muriithi
- Legal Topics
- Sentencing Revision, Pretrial Detention Credit, Grievous Harm, Penal Code Section 234
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patrick Mwiti Thuranira
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Revision
Legal Issues
- 1 Whether the applicant is entitled to have the period spent in pre-trial custody considered in the computation of his sentence under Section 333(2) of the Criminal Procedure Code.
- 2 Whether the trial court erred in failing to comply with the mandatory provisions of Section 333(2) of the Criminal Procedure Code.
Ratio Decidendi
The trial court erred by failing to comply with the mandatory provisions of Section 333(2) of the Criminal Procedure Code, which require that the period an accused has spent in pre-trial custody be taken into account when computing the sentence. The applicant was in custody from 11/3/2017 until sentencing on 17/4/2018, and the trial court did not make any order regarding this period. The High Court, therefore, revised the sentence to commence from the date of arrest, correcting the error of principle and ensuring compliance with statutory requirements and established appellate authority.
Court Disposition
sentence revised
Orders
- The sentence of 7 years imprisonment shall commence on 11/3/2017, the date of the applicant's arrest.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
CRIMINAL REVISION NO E232 OF 2021
PATRICK MWITI THURANIRA ..................................................APPLICANT
VERSUS
REPUBLIC..................................................................................RESPONDENT
RULING ON REVISION
1. The Applicant/Offender in this case was convicted and sentenced to imprisonment for 7 years for the offence of grievous harm Contrary to Section 234 of the Penal Code on 17/4/2018. The issue is whether the sentence should be reduced by revision.
2. The DPP by submissions dated 29/11/2021 urged the “court to uphold in custodial sentence reason being that this is a prevalent offence in Nkubu and the custodial sentence would serve as a deterrent. The Applicant in this matter is neither fit for non-custodial sentence nor a reduced sentence considering the gravity of the offence and the fact that the applicant was not at all remorseful.”
3. The P3 described the injury suffered by the complainant as ‘Deep cut would about 10cmx2cm on the left side of the face i.e. from left check over the left eye, forehead and skull, x-ray showed no fracture.”
4. The applicant urged the court to take into account the period of his remand before conclusion of the trial in terms of Section 333 (2) of the Criminal Procedure Code.
5. The court notes that the applicant was first arraigned in court on 13/3/2017 upon his arrest on 11/3/2017 as shown on the charge sheet. He was in custody until the date of sentence on 17/4/2018 and his trial court didn’t make any order as to the Pre-trial detention.
6. While agreeing with the trial court and the DPP that the applicant could “have easily killed the complainant [and] in the circumstances the accused deserved a deterrent sentence,” the court failed to comply with the mandatory provisions of Section 333(2) of the Criminal Procedure Code that:-
“Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.”
Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period
7. The trial court fell into an error of principle and the appellate court is in the authority of the cases cited by the DPP herein Bernard Kinani Gicheru v.r (2002) e LKR, Shadrack Kipchoge Kogo v.R Eldoret Criminal Appeal No. 253 of 2003 and Patrick Muli Mukutha v.r [2019 e KLR, entitled to interfere to correct the error of principle.
ORDERS
8. Accordingly, the sentence of the trial court is revised to the extent that the sentence of 7 years imprisonment shall commerce on the 11/3/2017 when the applicant was arrested to await his trial.
Orders accordingly.
DATED AND DELIVERED THIS 15TH DAY OF DECEMBER, 2021
EDWARD M. MURIITHI
JUDGE
APPEARANCES:-
APPLICANT IN PERSON.
MS. NANDWA, PROSECUTION COUNSEL FOR THE RESPONDENT.