[2021] KEHC 8285 (KLR)
The High Court found that the trial court had expressly considered the period the applicant spent in remand custody, as well as mitigation and the probation officer's report, when passing sentence. This consideration led the trial court to impose a sentence of 8 years, which was less than the statutory minimum of 10...
Source-derived case information.
- Citation
- [2021] KEHC 8285 (KLR)
- Parties
- Applicant: Peter Olwenyi; Respondent: Director of Public Prosecutions
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 278 of 2019
- Procedural Posture
- Criminal Revision / Ruling on Application for Sentence Revision
- Outcome
- application dismissed
- Judges
- DO Ogembo
- Legal Topics
- Sentence Revision, Remand Custody Credit, Sexual Offences Sentencing, Minimum Sentence, Mitigation, Criminal Procedure Code Section 333 2
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Olwenyi
Applicant
Director of Public Prosecutions
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Sentence Revision
Legal Issues
- 1 Whether the applicant is entitled to further reduction of his sentence to account for the period spent in remand custody prior to sentencing.
- 2 Whether the trial court had already considered the period spent in custody when passing sentence.
Ratio Decidendi
The High Court found that the trial court had expressly considered the period the applicant spent in remand custody, as well as mitigation and the probation officer's report, when passing sentence. This consideration led the trial court to impose a sentence of 8 years, which was less than the statutory minimum of 10 years under the Sexual Offences Act. Since the period in custody was already factored into the sentence, the applicant was not entitled to further reduction. The application for revision was therefore without merit and was dismissed.
Court Disposition
application dismissed
Orders
- The application for revision of sentence is dismissed.
- The applicant shall serve his sentence as ordered by the trial court.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CRIMINAL REVISION NO. 278OF 2019
PETER OLWENYI.......................................................................................................ACCUSED
VERSUS
DIRECTOR OF PUBLIC PROSECUTIONS........................................................... REPUBLIC
RULING
The applicant PETER OLWENYI, filed an application herein on 24. 10. 2019 seeking revision of his sentence. The application, principally brought under section 333(2) of the Criminal Procedure Code, seeks that this court do revise his sentence so as to account for the period he spent in remand custody from 16. 11. 2015 to 16. 10. 2017, when he was sentenced to serve 8 years imprisonment.
Ms. Akunja, counsel for the state opposed this application. Counsel submitted that during sentencing the court took into account the period he took into account the period he took in custody and thereafter reduced the sentence from 10 years to 8 years imprisonment. Counsel urged that the application be dismissed.
This application is primarily brought under section 333(2) of the Criminal Procedure Code, which at the proviso, directs that wherein the accused has been in custody prior to the date of sentence, then the sentence ought to take into account such period that the accused has been in custody awaiting determination of his case.
I have considered the records and the proceedings of the lower court. The applicant took plea on 17. 11. 2015. He was convicted and sentences on 16. 10. 2017. In the sentencing proceedings the court duly noted that it took into account the mitigation raised by the accused, the Probation Officer’s report and the period that the applicant had taken in custody awaiting conclusion of his case. The court went further that this formed its opinion in meting out a sentence that is less than the minimum sentence prescribed in law. Whereas the sentence prescribed under section 11(1) of the Sexual Offences Act is a term of not less than 10 years imprisonment, the court went ahead to sentence the applicant to serve 8 years imprisonment (Act to counts 3 and 4)
The trial court, clearly took into account the period spent in custody in it’s sentence. The applicant cannot therefore seek the same orders. It is for this reason that I find the application of the applicant filed herein on 24. 10. 2019 totally lacking in merit. I dismiss the same. I order that the applicant shall serve his sentence as ordered by the trial court.
D. O. OGEMBO
JUDGE
23. 3.2021.
Court:
Ruling read out in open court (online) in the presence of the applicant and Mutuma for state.
D. O. OGEMBO
JUDGE
23. 3.2021.