•The High court faulted the magistrate for not complying with the sentencing guidelines that requires that the man's time should have started in December 2015.
In 2015, while Dissan Kipchirchir was a prison inmate and while handcuffed, he had a key which he used to secretly try to unlock the cuffs and run to freedom, an offence which would earn him 10 years in jail.
But now, the man got some reprieve after a court ordered that his sentence be backdated by four years and start in 2015 because he was in custody throughout the trial. He was convicted in 2019.
Security officers who manned Kipchirchir found him in the act, trying to open the cuffs using the improvised key, and just before he could succeed.
Kipchirchir was then charged in court before a magistrate with the offence of preparing to commit a felony, namely attempting to escape from lawful custody by being found with an improvised key able to open handcuffs.
It is not clear for what offence he was initially arrested and put in custody before he committed the new crime that he got jailed for.
Early this year, he appealed for revision of the sentence at the High Court, complaining that the magistrate who sentenced him to ten years for trying to open the handcuffs and runs did not factor in the long time he had spent in custody during the pendency of the trial.
Though the prosecution conceded the appeal, they asked that the new sentence should start on the day he was committed to trial and not the time he was in custody before he could be arraigned.
The court found merit in the appeal, faulting the magistrate for not complying with the sentencing policy guidelines and the criminal procedure code that allows taking into account the time that a suspect had been in custody.
The guidelines say that failure to factor in time already served in custody during trial "impacts on the overall period of detention which may result in an excessive punishment that is not proportional to the offence committed".
In determining the period of imprisonment that should be served by an offender, the court must take into account the period in which the offender was held in custody during the trial, as the sentencing guidelines provide.
Section 362 of the Criminal Procedure Code bestows upon the court the jurisdiction to review by calling for and examining the record of any criminal proceedings before a subordinate court for purposes of satisfying itself as to the correctness, legality or propriety of any sentence by a subordinate court.
“Thus, I am persuaded that the learned magistrate was in error not to remain alive to the period the Applicant had spent in custody during trial and factor in the same in his sentence,” the judgment dated November 9, 2023, reads.
“This court finds merit in the Petition and allows the same. The court accordingly reviews the applicant's imprisonment sentence as imposed to run from December 8, 2015.”
This means that the man will now serve only two more jail years from 2023 and be freed in 2025 rather than 2029.