Matheka v Republic [2024] KEHC 6948 (KLR)

Matheka v Republic (Criminal Revision 102 of 2024) [2024] KEHC 6948 (KLR) (10 June 2024) (Ruling)

Neutral citation: [2024] KEHC 6948 (KLR)

Republic of Kenya

In the High Court at Kibera

Criminal Revision 102 of 2024

DR Kavedza, J

June 10, 2024

Between

Nelson Musili Matheka

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 section 8(3) of the Sexual Offences Act, No. 3 of 2006. He was sentenced to serve twenty (20) 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 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.

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 applicant was arrested on 10th December 2012. He was arraigned in court for take plea. He was released on bond on 17th September 2013 until his conviction. He, therefore, spent 9 moths and 12 days in remand custody. From the record, it is clear that the period was not factored in during his sentencing and appeal. 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 twenty (20) years imprisonment shall be computed less by nine (9) months and twelve (12) days and shall run from the date of conviction.Orders accordingly.

RULING DATED AND DELIVERED VIRTUALLY THIS 10TH DAY OF JUNE 2024. D. KAVEDZAJUDGE