INTRODUCTION
- The applicant by way of a Notice Motion dated 1st July 2024 has moved this court to consider having the sentence imposed upon him reviewed to take into account the period that he spent in custody before conviction and sentence.
- The applicant was charged with the offence of attempted defilement of a child contrary to Section 9(1) as read with Section 9(2) of the Sexual Offences Act No. 3 of 2006. He was tried, convicted and sentenced on the 3rd of June 2022 to a period of 10 years imprisonment.
- It is clear from the sentencing notes that the learned Honorable magistrate did not make mention of the period that the accused person had spent in custody prior to his conviction and sentence.
- Plea in the matter was taken on the 28th December 2018 the accused person having been arrested on 26th December 2018. The accused person was granted a bond of Kshs. 300,000 but there is no record to show that the accused person managed to raise the bond thus he was remanded in custody throughout his trial until the day he was sentenced.
- It follows therefore under the provisions of Section 333 (2) of the Criminal Procedure Code the accused person ought to have been granted credit in sentencing for the period spent in custody before sentence.
- The learned Honorable magistrate erred in law by failing to take into account the period spent in custody. The legality of the sentence therefore comes into question and this court under the provision of Section 362 -365 of the Criminal Procedure Code is bound to interfere and correct the sentence.
- In the end, the application for revision by the applicant is hereby allowed and the applicant’s 10 year period of imprisonment shall be computed from the 26th December 2018.
- It is so ordered.