[2020] KEHC 4459 (KLR)
The court held that section 333(2) of the Criminal Procedure Code mandates that any period spent in custody prior to sentencing must be considered when computing the sentence to be served. The applicant was arrested on 16.8.2017 and remained in custody until his conviction on 31.5.2018. The court found that the...
Source-derived case information.
- Citation
- [2020] KEHC 4459 (KLR)
- Parties
- Applicant: Paul Mutua Masilia; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application Application139 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Review of Sentence
- Outcome
- application allowed
- Judges
- BC Koech
- Legal Topics
- Sentencing Review, Time Spent in Custody, Wildlife Offences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Mutua Masilia
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Review of Sentence
Legal Issues
- 1 Whether the court may review the sentence to account for the period the applicant spent in custody before conviction.
- 2 Whether section 333(2) of the Criminal Procedure Code applies to the applicant's circumstances.
Ratio Decidendi
The court held that section 333(2) of the Criminal Procedure Code mandates that any period spent in custody prior to sentencing must be considered when computing the sentence to be served. The applicant was arrested on 16.8.2017 and remained in custody until his conviction on 31.5.2018. The court found that the applicant's request to have this period considered was meritorious. The court further held that, despite the respondent's argument that the applicant should have appealed to the Court of Appeal, the applicant was entitled to seek a review before the High Court, especially where the review related to minor errors that did not go to the root of the case. Consequently, the court...
Court Disposition
application allowed
Orders
- The sentences imposed by the trial court and upheld by this court on 27.3.2019 shall commence from the date of arrest, namely 16.8.2017.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT MACHAKOS
Coram: D. K. Kemei- J
MISC CRIMINAL APP. NO. 139 OF 2019
PAUL MUTUA MASILIA......................................................APPLICANT
VERSUS
REPUBLIC..........................................................................PROSECUTOR
RULING
1. The Applicant was charged and convicted with the offence of being in possession of meat of Wildlife Species contrary to section 98 of the Wildlife Conservation and Management Act 2013. He was sentenced to pay a fine of Kshs 500,000/- in default to serve 2 years imprisonment and Kshs 2,000,000/- in default to serve 6 years imprisonment by the trial court and appealed to this court against sentence in which this court ordered the same to run concurrently.
2. He then filed the instant application seeking that the period he spent in custody should be considered.
3. Mr. Martin Mwongera, prosecution counsel, opposed the application and submitted that the applicant ought to have gone to the Court of Appeal and not this court.
4. The issue for determination is whether the court may review the sentence.
5. Section 333 (2) of the Criminal Procedure Code states:
“(2) 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 spent in custody.”
6. It is the considered opinion of this court having had due regard to section 333 (2) of the Criminal Procedure Code that the applicant’s request for the period spent in custody before conviction be considered has merit. The lower court record indicated that the appellant was arrested on 16. 8.2017 and remained in custody until his conviction on 31. 5.2018. This court has discretion to entertain a review of its order if the requisite reasons are advanced. The review sought herein mainly relates to minor errors which do not go to the root of the case as it is only intended to allow the applicant enjoy his rights under section 333(2) of the Criminal Procedure Code. The applicant though entitled to proceed to the Court of Appeal as suggested by the Respondent has a right to approach this court on review.
7. In the result the Applicant’s application has merit and is allowed. The sentences imposed by the trial court and upheld by this court on the 27. 3.2019 shall commence from the date of arrest namely 16. 8.2017.
It is so ordered.
Dated and delivered at Machakos this 8th day of July,2020
D. K. Kemei
Judge