[2020] KEHC 10477 (KLR)
The court found that the applicant had spent nine months in remand custody prior to his conviction and sentencing, and that this period was not previously considered in the computation of his sentence. The respondent did not oppose the application. The court applied Section 333(2) of the Criminal Procedure Code,...
Source-derived case information.
- Citation
- [2020] KEHC 10477 (KLR)
- Parties
- Appellant: Stephen Odhiambo Ndere; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Petition 18 of 2019
- Procedural Posture
- Criminal Appeal / Ruling on Sentence Reduction Application
- Outcome
- application allowed
- Legal Topics
- Sentencing, Remand Custody Credit, Sexual Offences, Appeals, Sentence Reduction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Odhiambo Ndere
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Sentence Reduction Application
Legal Issues
- 1 Whether the period of nine months spent in remand custody by the applicant should be considered in reducing his sentence.
- 2 Whether the sentence imposed by the High Court on appeal should be reduced to account for time already served in remand.
Ratio Decidendi
The court found that the applicant had spent nine months in remand custody prior to his conviction and sentencing, and that this period was not previously considered in the computation of his sentence. The respondent did not oppose the application. The court applied Section 333(2) of the Criminal Procedure Code, which requires that any period spent in remand custody be taken into account when passing sentence. The court also noted a typographical inconsistency in the appellate judgment regarding the length of the substituted sentence, but determined that the reduction by nine months was merited regardless. Accordingly, the court allowed the application and ordered that the sentence...
Court Disposition
application allowed
Orders
- The sentence imposed by the High Court on appeal is reduced by nine months, being the period the applicant was in remand custody awaiting trial and conclusion of the case by the Magistrate’s Court.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT HOMA BAY
PETITION NO.18 OF 2019
STEPHEN ODHIAMBO NDERE...PETITIONER
VERSUS
REPUBLIC.....................................RESPONDENT
RULING
1. The Notice of motion filed herein on 12th November, 2019, by the applicant, Stephen Odhiambo Ndere, seeks an order that the nine(9) months already spent by him in remand custody be taken in consideration as he was never released on bond during the trial before the Magistrate’s court at Homa-Bay for the offences of attempted rape, contrary to Section 4 of the Sexual Offences Act and assault causing actual bodily harm contrary to Section 251 of the Penal Code for which he was sentenced to twenty five(25) years imprisonment for the first count and four (4) years imprisonment for the second count. The sentences were to run concurrently from 29th September, 2015.
2. Being dissatisfied with the conviction and sentence, the applicant filed an appeal before this court and on the 4th April 2016 his conviction by the trial court was affirmed, but the sentence of twenty five (25) years imprisonment on the first count (i.e attempted rape) was set aside and substituted for a sentence of either ten (10) or eight(8) years imprisonment. There could be a typographical error or something as paragraph [27] of the judgment of the High Court on appeal indicated ten (10) years while paragraph [28] indicates eight (8) years. Whatever the case, the state/respondent did not oppose the application and this court having given it due consideration finds it meritable.
Consequently, the application is allowed to the extent that the sentence imposed by this court on appeal be and is hereby reduced by nine(9) months being the period the applicant was in remand custody awaiting trial and conclusion of the case by the Magistrate’s Court.
Ordered accordingly.
(Delivered and signed this 26th day of November, 2020 )
J.R. KARANJAH
JUDGE OF THE HIGH COURT