[2024] KEHC 2795 (KLR)
The High Court found that the court which resentenced the applicant on 8th February 2021 did in fact consider the period spent in remand custody, as evidenced by the order that the 40-year imprisonment sentence was to run from the date of the original sentence in 2012. Therefore, the applicant's claim that the...
Source-derived case information.
- Citation
- [2024] KEHC 2795 (KLR)
- Parties
- Applicant: SMK; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kibera
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 37 of 2024
- Procedural Posture
- Criminal Revision / Ruling on Application for Sentence Review
- Outcome
- application dismissed
- Judges
- DR Kavedza
- Legal Topics
- Sentencing Review, Incest Offence, Remand Custody Credit, Sexual Offences Act, Criminal Procedure Code, Resentencing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
SMK
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Sentence Review
Legal Issues
- 1 Whether the trial court considered the time spent in remand custody by the applicant when computing the sentence as required by section 333(2) of the Criminal Procedure Code.
- 2 Whether the applicant is entitled to a further review of sentence based on alleged non-consideration of remand period and claims of remorse and rehabilitation.
Ratio Decidendi
The High Court found that the court which resentenced the applicant on 8th February 2021 did in fact consider the period spent in remand custody, as evidenced by the order that the 40-year imprisonment sentence was to run from the date of the original sentence in 2012. Therefore, the applicant's claim that the remand period was not considered is unfounded. The application for sentence review was dismissed for lack of merit, as the mandatory requirements of section 333(2) of the Criminal Procedure Code had already been satisfied and there was no legal basis for further review.
Court Disposition
application dismissed
Orders
- The application for sentence review is dismissed for lack of merit.
Full Case Text
Judgment text and source record
21 paragraphs
SMK v Republic (Criminal Revision 37 of 2024) [2024] KEHC 2795 (KLR) (19 March 2024) (Ruling)
Neutral citation: [2024] KEHC 2795 (KLR)
Republic of Kenya
In the High Court at Kibera
Criminal Revision 37 of 2024
DR Kavedza, J
March 19, 2024
Between
SMK
Applicant
and
Republic
Respondent
Ruling
1. The applicant was charged and convicted on four counts of the offence of incest contrary to section 20 (1) of the Sexual Offences Act, No. 3 of 2006. He was sentenced to life imprisonment. His appeal before this court was dismissed. He applied for resentencing and his sentenced of life imprisonment was substituted with a sentence of 40 years imprisonment. He has now filed an application for sentence review. The arguments raised are that the trial court failed to consider the time spent in reman custody during the computation of sentence under the provision of section 333(2) of the Criminal Procedure Code, Cap 75 of the Laws of Kenya. In addition, he is remorseful and has been rehabilitated since his incarceration.
2. 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.
3. The proviso to section 333(2) of the Criminal Procedure Code obligates the court to consider 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.
4. It is therefore clear that it is mandatory that the period which an accused has been held in custody prior to being sentenced be considered in meting out the sentence where it is not hindered by other provisions of the law.
5. From the record, the court that resentence the applicant on 8th February 2021 considered this period thus ordering that the 40 years imprisonment to run from the date of original sentence in 2012.
6. The upshot of the above is that the application is dismissed for lacking in merit.Orders accordingly.
RULING DATED AND DELIVERED VIRTUALLY THIS 19TH DAY OF MARCH 2024. D. KAVEDZAJUDGE