[2024] KEHC 6336 (KLR)
The court found that the trial court failed to comply with the mandatory requirement under section 333(2) of the Criminal Procedure Code to consider the period the applicant spent in remand custody prior to sentencing. The applicant was in custody from 12th April 2016 until his conviction on 23rd June 2021, and this...
Source-derived case information.
- Citation
- [2024] KEHC 6336 (KLR)
- Parties
- Applicant: Chrispus Kiborit Soet; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kibera
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 2 of 2024
- Procedural Posture
- Miscellaneous Criminal Application / Revision of Sentence
- Outcome
- Application allowed. Sentence to run from date of arrest.
- Judges
- DR Kavedza
- Legal Topics
- Sentencing Revision, Remand Custody Credit, Sexual Offences, Defilement, Criminal Procedure, Sentence Computation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Chrispus Kiborit Soet
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Revision of Sentence
Legal Issues
- 1 Whether the trial court erred by failing to consider the period the applicant spent in remand custody when computing the sentence.
- 2 Whether section 333(2) of the Criminal Procedure Code mandates courts to deduct time spent in custody from the sentence imposed.
Ratio Decidendi
The court found that the trial court failed to comply with the mandatory requirement under section 333(2) of the Criminal Procedure Code to consider the period the applicant spent in remand custody prior to sentencing. The applicant was in custody from 12th April 2016 until his conviction on 23rd June 2021, and this period was not factored into the sentence imposed. The failure to account for this period amounted to a denial of a statutory right. The court therefore allowed the application and ordered that the sentence of eight years imprisonment should run from the date of arrest, 12th April 2016, in compliance with the law.
Court Disposition
Application allowed. Sentence to run from date of arrest.
Orders
- The sentence of eight years imposed by the trial court shall run from 12th April 2016, the date of the applicant’s arrest, pursuant to section 333(2) of the Criminal Procedure Code.
Full Case Text
Judgment text and source record
22 paragraphs
Soet v Republic (Miscellaneous Criminal Application 2 of 2024) [2024] KEHC 6336 (KLR) (3 June 2024) (Ruling)
Neutral citation: [2024] KEHC 6336 (KLR)
Republic of Kenya
In the High Court at Kibera
Miscellaneous Criminal Application 2 of 2024
DR Kavedza, J
June 3, 2024
Between
Chrispus Kiborit Soet
Applicant
and
Republic
Respondent
Ruling
1. The applicant was charged and convicted for the offence of defilement contrary to section 8(1) as read with 8(3) of the Sexual Offences Act, No. 3 of 2006. He was sentenced to serve 8 years imprisonment. He has now filed an application seeking revision of sentence. He filed an affidavit in support of his motion. The arguments raised are that the trial court failed to consider the time she spent in remand 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.
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 v Republic [2018] eKLR and Bethwel Wilson Kibor v Republic [2009] eKLR and more recently in the High Court case of Vincent Sila Jona & 87 others v 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 applicant was arrested on 12th April 2016. He was arraigned in court for take plea and was in custody for the entirety of his trial until his conviction on 23rd June 2021. He, therefore, spent time in remand custody. From the record, it is clear that the period was not factored in during his sentencing. Guided by the law, the court is of the view that the application ought to be considered, as failure to do so would amount to denying the applicant a right due to the failure of the court to discharge an obligation bestowed upon it by law.
6. I thus allow the application. In the premises, I make the following orders: the sentence of eight years imposed by the trial court shall run from 12th April 2016 the date of the applicant’s arrest pursuant to section 333(2) of the Criminal Procedure Code, Cap 75 Laws of Kenya.
Orders accordingly.
RULING DATED AND DELIVERED VIRTUALLY THIS 3RD DAY OF JUNE 2024. ______________D. KAVEDZAJUDGE