[2023] KEHC 25935 (KLR)
The court found that the applicant had spent ten months and three days in custody prior to his conviction and sentencing, and that the trial court failed to take this period into account as required by Section 333(2) of the Criminal Procedure Code. The court held that this omission was contrary to both statutory and...
Source-derived case information.
- Citation
- [2023] KEHC 25935 (KLR)
- Parties
- Applicant: Maxwell Agaziba; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Vihiga
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E015 of 2022
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application to Consider Pre Sentence Custody Period Under Section 333(2) Cpc
- Outcome
- application allowed
- Judges
- JN Kamau
- Legal Topics
- Sentencing Procedure, Pre Sentence Custody, Fair Trial Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Maxwell Agaziba
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application to Consider Pre Sentence Custody Period Under Section 333(2) Cpc
Legal Issues
- 1 Whether the period the applicant spent in custody prior to sentencing should be taken into account in computing his sentence under Section 333(2) of the Criminal Procedure Code.
- 2 Whether the omission to consider pre-sentence custody contravened the applicant's right to a fair trial.
Ratio Decidendi
The court found that the applicant had spent ten months and three days in custody prior to his conviction and sentencing, and that the trial court failed to take this period into account as required by Section 333(2) of the Criminal Procedure Code. The court held that this omission was contrary to both statutory and policy guidelines, and that the applicant was entitled to have the pre-sentence custody period considered in the computation of his sentence. The application was therefore merited and allowed, with a direction that the period spent in custody be factored into the sentence computation.
Court Disposition
application allowed
Orders
- The period the applicant spent in custody between 14th November 2020 and 17th September 2021 shall be taken into account in the computation of his sentence as provided in Section 333(2) of the Criminal Procedure Code.
Full Case Text
Judgment text and source record
29 paragraphs
Agaziba v Republic (Miscellaneous Criminal Application E015 of 2022) [2023] KEHC 25935 (KLR) (27 November 2023) (Ruling)
Neutral citation: [2023] KEHC 25935 (KLR)
Republic of Kenya
In the High Court at Vihiga
Miscellaneous Criminal Application E015 of 2022
JN Kamau, J
November 27, 2023
Between
Maxwell Agaziba
Applicant
and
Republic
Respondent
Ruling
Introduction 1. The Applicant herein was charged with the offence of stealing contrary to Section 275 of the Penal CodeCap 63 (Laws of Kenya). He was convicted and sentenced to five (5) years imprisonment.
2. On 23rd August 2022, P.J. Otieno J found him unsuitable to serve a non-custodial sentence.
3. On 19th September 2022, he filed a Notice of Motion application seeking to have the period that he stayed in custody while the trial was ongoing being from 23rd March 2020 to 17th September 2021 taken into account as part of the sentence that he had already served pursuant to Section 333(2) of theCriminal Procedure Code.
4. In his said application that was supported by his Affidavit, he pointed out that his sentence ought to have run from the date of his conviction which was 17th September 2021. It was his assertion that the omission by the Trial Court to consider this period contravened his right to fair trial under Article 25 (2) of the Constitution.
5. He cited the case of Ahamad Albofathi Mohammed & Another vs Republic [2018] eKLR where the court held that sentence ought to run from the date of arrest. He thus urged this court to grant him the orders he had sought.
6. He did not file Written Submissions to support his prayer. The Respondent was not opposed to the said application and did not therefore file any Written Submissions.
Legal Analysis 7. As seen hereinabove, the Applicant’s application was based on Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya). The said Section provides that:“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”
8. This duty is also contained in the Judiciary Sentencing Policy Guidelines (under clauses 7. 10 and 7. 11) where it is provided that: -“The proviso to section 333 (2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody if the convicted person had been in custody during the trial. Failure to do so 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.”
9. The duty to take into account the period an accused person had remained in custody before sentencing pursuant to Section 333(2) of the Criminal Procedure Codewas restated by the Court of Appeal in the case of Ahamad Abolfathi Mohammed & Another v Republic(Supra).
10. The Applicant was arrested on 14th November 2020. He was convicted and sentenced on 17th September 2021. Although he was granted bail, he did not appear to have come out on bond/bail while his trial was going on. He thus spent ten (10) months and three (3) days in custody before he was sentenced.
11. A further reading of the Trial Court’s Sentence showed that it did not take into consideration the time he spent in remand before conviction and sentencing. This court was therefore convinced that this was a suitable case for it to exercise its discretion and grant the orders sought.
Disposition 12. For the foregoing reasons, the upshot of this court’s decision was that the Applicant’s Notice of Motion application that was dated 15th September 2022 and filed on 19th September 2022 was merited and the same be and is hereby allowed.
13. It is hereby directed that the period the Applicant spent in custody between 14th November 2020 and 17th September 2021 as the trial was ongoing as provided in Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya), be taken into account at the time of computation of his sentence.
14. It is so ordered.
DATED AND DELIVERED AT VIHIGA THIS 27TH DAY OF NOVEMBER 2023J. KAMAUJUDGE