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JudgmentFRANCIS MAUNDU MATELI VS The Republic3 min read

FRANCIS MAUNDU MATELI VS The Republic

High Court at Makueni High Court · · Matheka, Teresia Mumbua

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MAKUENI

CRIMINAL REVISION E007 OF 2024

FRANCIS MAUNDU MATELI……………………………….APPLICANT

VERSUS

REPUBLIC……………………………………….……………RESPONDENT

JUDGMENT

  1. The application before me is undated but was filed on 4/3/2024. It is headed – Notice of Petition.
  2. The applicant states that he was sentenced to 10 years imprisonment on 5/8/2018 by which time he had been in remand custody from 10/8/2017.
  3. That the subordinate court did take into consideration the period he had spent in custody in accordance with section 333(2) of the Criminal Procedure Code.
  4. His prayer is that the sentence be revised to take into consideration the period he had spent in custody.
  5. Section 333(2) of the Criminal Code states:-

Subject to the provisions of section 38 of the Penal Code (Cap. 63) 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 subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.

  1. This court is empowered to supervise the subordinate courts by  as per the provisions of Article 165(6) and 165(7) of the Constitution. (6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.

(7)  For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.

  1. Section 362 of the Criminal Procedure Code gives the power for revision in criminal matters

The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.

  1. The record shows that the applicant was in custody from 10/8/2017 to 5/4/2018   when he was convicted. The subordinate court was required by law to take into account that period of time.  The record has nothing to show that the trial court did this.
  2. The issue now is whether this application is tenable.
  3. The provisions of section 333(2) are couched in mandatory terms. The Sentencing Guidelines 2023 provide thus

Time served in custody prior to conviction

2.3.18 Section 333 (2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody. Failure to do so impacts the overall period of detention which may result in a punishment that is not proportionate to the seriousness of the offence committed. This also applies to those who are  charged with offences that involve minimum sentences as well as where an accused  person has spent time in custody because he or she could not meet the terms of bail

or bond.

2.3.19  Upon determining the period of imprisonment to impose upon an offender, the court must then deduct the period spent in custody in identifying the actual period to be served (see GATS at Part V). This period must be carefully calculated – and  courts should make an enquiry particularly with unrepresented offenders – for example, there may be periods served where bail was interrupted and a short remand  in custody was followed by a reissuance of bail e.g., where a surety is withdrawn, and a new surety is later found. This calculation must include time spent in police custody.

2.3.20 An offender convicted of a misdemeanour and who had been in custody throughout the trial for a period equal to or exceeding the maximum term of imprisonment provided for that offence, should be deemed to have served their sentence and be released immediately.

  1. The trial court not having taken into consideration that period of time the application is tenable
  2. The application is allowed.
  3. The sentence of 10 years and 6 months imposed on the accused person will now run from 10/8/2017.      
  4. Orders accordingly.                                                                                                          

Dated,Signed and uploaded on CTS on 19thNovember 2024

Mumbua T Matheka

Judge

    FRANCIS MAUNDU MATELI VS The Republic FRANCIS MAUNDU MATELI VS The Republic