1.By the Notice of Motion(undated) brought under Certificate of Urgency(undated) the Applicant seeks revision of his sentence pursuant to Section 333(2) of the Criminal Procedure Code. Simply put his prayer is that the sentence be varied so as to take into account the period he spent in remand custody.
2. The Applicant was charged with, convicted and sentenced to imprisonment for 15 years for the offence of Defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act.
3. The sentence prescribed under Section 8(4) of the Sexual Offences Act is a minimum sentence which this court cannot interfere with in view of the decision of the Supreme Court in the case of Republic vs Mwangi, Initiative for Strategic Litigation in Africa & 3 others (amicus curiae) Petition NO E018 OF 2023[2024] KESC 34[KLR] (12TH July 2024) (JUDGMENT).
4. Be that as it may, Section 333(2) of the Criminal Procedure Code obligates the court sentencing the accused person to take into account the period spent in remand custody.
5. I have perused the record of the lower court and it is evident that the Learned Magistrate overlooked the provisions of Section 333(2) of the Criminal Procedure Code. Accordingly, whereas this court cannot alter the sentence imposed by the trial court it hereby directs that the correctional facility shall compute the sentence of imprisonment for 15 years to commence from the date of arrest which is 2nd December, 2021 so as to take into account the period spent in remand custody.
Orders accordingly.
File closed.
RULING DATED, SIGNED AND DELIVERED VIRTUALLY ON THIS 27TH DAY OF FEBRUARY, 2025.
E. N. MAINA
JUDGE
27/02/2025
In the presence of:
Ms Nyauncho for the state
Applicant in person (online)
C/A: Geoffrey