[2021] KEHC 5263 (KLR)
The court found that the trial magistrate failed to consider the period of 3 months the appellant had spent in custody prior to sentencing, as required by section 333(2) of the Criminal Procedure Code. Since the State did not oppose the appeal and the appellant was a first offender who pleaded guilty, the court held...
Source-derived case information.
- Citation
- [2021] KEHC 5263 (KLR)
- Parties
- Appellant: Wambua Musyoki; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Makueni
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 22 of 2020
- Procedural Posture
- Criminal Appeal / Judgment on Sentence Appeal
- Outcome
- sentence reduced
- Judges
- GMA Dulu
- Legal Topics
- Sentencing Review, Time Spent in Custody, Burglary, Stealing, Plea of Guilty
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wambua Musyoki
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Sentence Appeal
Legal Issues
- 1 Whether the trial court erred by not considering the period the appellant spent in custody when passing sentence.
- 2 Whether the sentence should be reduced to account for time already served in custody.
Ratio Decidendi
The court found that the trial magistrate failed to consider the period of 3 months the appellant had spent in custody prior to sentencing, as required by section 333(2) of the Criminal Procedure Code. Since the State did not oppose the appeal and the appellant was a first offender who pleaded guilty, the court held that the sentence should be reduced by the period already served in custody. The concurrent 4-year imprisonment sentence was therefore reduced by 3 months to reflect the time spent in custody.
Court Disposition
sentence reduced
Orders
- The concurrent 4 years imprisonment sentence imposed on the appellant is reduced by a period of three (3) months.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MAKUENI
HCCRA NO. 22 OF 2020
WAMBUA MUSYOKI.............................................................................................APPELLANT
-VERSUS-
REPUBLIC...........................................................................................................RESPONDENT
(Being an appeal from the original conviction and sentence of Hon. A. Ndung’u (S.R.M)
in Makindu Senior PrincipalMagistrate’s CourtPMCRCase No. 1054 of 2018
issued on 21st January, 2019).
JUDGMENT
1. The appellant was convicted on his own plea to burglary contrary to section 304(2) and stealing contrary to section 279(b) of the Penal Code and sentenced to 4 years imprisonment, on each limb of the charge, the sentences to run concurrently, thus a total of 4 years imprisonment from 21st January 2019 when he was sentenced.
2. He has now come to this court on sentence only, arguing that his sentence should have taken into account the provisions of section 333(2) of the Criminal Procedure Code (cap. 75) as he was in custody for 5 months during trial.
3. The Prosecuting Counsel in response has left it to this court to determine the matter, and has not filed any response to the appeal of the appellant.
4. I note that the relevant part of section 333 of the Criminal Procedure Code provides as follows -
333(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 sub-section (1) has, prior to such sentence, been held in custody, thesentence shall take account of the period spent in custody”
5. I note that the value of the items stolen herein was about Kshs.500,000/= and that some of the items were recovered. The appellant was also sentenced after the court considered a pre-sentence report filed by the Probation Officer, after he pleaded guilty to the charge and was a first offender. He spent 3 months in custody during trial.
6. Since the State has not opposed the request by the appellant for review of sentence imposed, and taking into account the provisions of section 333(2) of the Criminal Procedure Code above, I reduce the sentence by the 3 months period the appellant was in custody.
7. Thus the concurrent 4 years imprisonment sentence imposed on the appellant is hereby reduced by a period of three (3) months.
DELIVERED, SIGNED & DATED THIS 13TH DAY OF JULY, 2021, IN OPEN COURT AT MAKUENI.
............................
GEORGE DULU
JUDGE