Muli v Republic [2025] KEHC 3399 (KLR)

Muli v Republic (Criminal Revision E002 of 2025) [2025] KEHC 3399 (KLR) (18 March 2025) (Ruling)

Neutral citation: [2025] KEHC 3399 (KLR)

Republic of Kenya

In the High Court at Kibera

Criminal Revision E002 of 2025

DR Kavedza, J

March 18, 2025

Between

Clinton Kasyoki Muli

Applicant

and

Republic

Respondent

Ruling

1. The applicant was charged and convicted of 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 life imprisonment. The sentence was later reduced to 25 years imprisonment on appeal.

2. He filed the present application and an affidavit in support of his motion seeking sentence review. The arguments raised are that the trial court failed to consider the time he spent in remand custody during the computation of his sentence.

3. 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.

4. The proviso to section 333 (2) of the Criminal Procedure Code obligates the court to take into account 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.

5. It is therefore clear that it is mandatory that the period which an accused has been held in custody prior to being sentenced be taken into account in meting out the sentence where it is not hindered by other provisions of the law.

6. From the record, the applicant was arrested on 3rd June 2015 and was never released on bail/bond until his conviction and sentence on 20th February 2018. He, therefore, spent two (2) years, seven (7) months and nineteen (19) days in remand custody. From the record, that the period was not factored in during his sentencing.

7. 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.

8. I thus allow the application and order that the sentence imposed shall be computed less by (2) years, seven (7) months and nineteen (19) days pursuant to section 333(2) of the Criminal Procedure Code.Orders accordingly.

RULING DATED AND DELIVERED VIRTUALLY THIS 18THDAY OF MARCH 2025D. KAVEDZAJUDGE