[2024] KEHC 13870 (KLR)
The court found that Section 333(2) of the Criminal Procedure Code is couched in mandatory terms and obliges the sentencing court to take into account the period an accused person has spent in custody prior to sentencing. The learned magistrate failed to consider the applicant's remand period from 7/1/2020 to...
Source-derived case information.
- Citation
- [2024] KEHC 13870 (KLR)
- Parties
- Applicant: Simon Samaki; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E027 of 2024
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Consideration of Pre Sentence Custody Period
- Outcome
- application allowed
- Judges
- LW Gitari
- Legal Topics
- Sentencing Procedure, Pretrial Detention Credit, Computation of Sentence, Remand Periods
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simon Samaki
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Consideration of Pre Sentence Custody Period
Legal Issues
- 1 Whether the period spent by the applicant in pretrial custody should be considered in computing the sentence imposed.
- 2 Whether the trial court erred by failing to take into account the applicant's remand period as required by Section 333(2) of the Criminal Procedure Code.
Ratio Decidendi
The court found that Section 333(2) of the Criminal Procedure Code is couched in mandatory terms and obliges the sentencing court to take into account the period an accused person has spent in custody prior to sentencing. The learned magistrate failed to consider the applicant's remand period from 7/1/2020 to 9/8/2021, despite the applicant remaining in custody throughout this period due to non-compliance with bail terms. The failure to deduct this period from the sentence was an error. The court therefore ordered that the applicant's sentence should be deemed to have commenced on 7/1/2020, thereby giving effect to the statutory requirement and ensuring the applicant receives credit for...
Court Disposition
application allowed
Orders
- The sentence imposed on the applicant shall run from 7/1/2020 to take into account the time spent in custody.
Full Case Text
Judgment text and source record
19 paragraphs
Samaki v Republic (Miscellaneous Criminal Application E027 of 2024) [2024] KEHC 13870 (KLR) (29 October 2024) (Ruling)
Neutral citation: [2024] KEHC 13870 (KLR)
Republic of Kenya
In the High Court at Chuka
Miscellaneous Criminal Application E027 of 2024
LW Gitari, J
October 29, 2024
Between
Simon Samaki
Applicant
and
Republic
Respondent
Ruling
1. The applicant seeks an order that time spent in remand awaiting trial be considered as provided under Section 333(2) of the Criminal Procedure Code (Cap 75 Laws of Kenya).
2. The State did not oppose the application. Section 333(2) supra provides that:“(2) Subject to the provisions of section 38 of the Penal Code 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.”The Section is couched in mandatory terms and requires the trial court to take into account the period spent in custody awaiting trial to reduce the sentence which the court ultimately imposes on the accused person. This was so stated in the case of Ahamed Abolfathi & Another –v- Republic (2018) eKLR where the court of Appeal held that;“By dint of Section 333(2) of the Criminal Procedure Code, the court was obliged to take into account the period that they had spent in custody before they were sentenced……."Taking into account” the period spent in custody must mean considering that period so that the sentence imposed is reduced proportionately by the period already spent in custody. It is not enough for the court to merely state that it has taken into account the period already spent in custody and still order the sentence to run from the date of conviction because that amount to ignoring altogether the period already spent in custody.”
3. In this case the learned magistrate did not consider the pretrial detention by the applicant when passing sentence. The applicant was in custody from 7/1/2020. Although the applicant was granted bail, he did not comply with the terms and remained in custody upto 9/8/2021. The period spent in custody was not considered.
4. In the end I find that the application has merits. I order that the sentence imposed on the applicant should run from 7/1/2020 to take into account the time spent in custody. I do order.
DATED, SIGNED AND DELIVERED AT CHUKA THIS 29TH DAY OF OCTOBER 20234. L.W. GITARIJUDGE