[2022] KEHC 16284 (KLR)

Bambo v Republic (Criminal Revision 039 of 2020) [2022] KEHC 16284 (KLR) (Crim) (8 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16284 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Revision 039 of 2020

JM Bwonwong'a, J

December 8, 2022

Between

Bonface Mchila Bambo

Applicant

and

Republic

Respondent

(Being an application for revision of the sentense of 10 years imprisonment imposed by Hon. C.N Nzibe (S.R.M) on 27th May 2020 in Milimani Chief Magistrate’s Court in Sexual Offences Case No. 6 of 2017 Republic vs Bonface Mchila Bambo)

Ruling

1. The applicant was charged and convicted of the offence of defilement contrary to section 8 (1) as read with 8 (3) of the Sexual Offences Act No 3 of 2006. He was convicted and sentenced to serve ten (10) years imprisonment.

2. The applicant has now filed an application dated September 29, 2020 seeking a revision of his sentence. He prayed that the court takes into account the three years spent in pre-trial custody and revise his sentence accordingly.

3. The application is supported by an affidavit sworn by the applicant. He avers that he is very remorseful for his actions and will never repeat the offence. Secondly, that he is the sole breadwinner in his family and since his incarceration, they have greatly suffered. He urges the court to consider the 3-year period of pre-trial remand custody and revise his sentence.

4. In his submissions, the applicant relied on the record of appeal and urged the court to consider the time spent in pre-trial remand custody.

The Submissions Of The Respondent 5. For the respondent, Ms Joy learned prosecution counsel conceded the application.

Issues For Determination 6. I have considered the application, the averments thereto, and the applicable law. The issue that arises for determination is whether the applicant has made out a case for revision of his sentence.

Analysis And Determination 7. While the application is premised on the provisions of section 333 (2) of the Criminal Procedure Code, it invokes the revisional jurisdiction of this court, which is donated by section 362 of the Criminal Procedure Codewhich reads as follows:“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.”

8. I note that the applicant substantively seeks the revision of his sentence of 10 years. Section 333 (2) of the Criminal Procedure Code (cap 75) Laws of Kenya, in that regard provides that:“(2) 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.”

9. I have perused the notes on sentence of the trial court. I find that the applicant was arrested on June 4, 2017 and arraigned in court on June 6, 2017. He applied for bail/bond and the same was granted. From the record, he did not raise the cash bail. He was therefore in custody until his sentencing on May 27, 2020 having spent 2 years 11 months and 23 days years in pre-trial remand custody.The court then sentenced the applicant to ten years imprisonment.

10. In sentencing the applicant, the trial court considered his mitigation. Further, the Sexual offences Act prescribes a minimum sentence. And the court found the complainant's age to be 17 years as per the age assessment report. The accused was then sentenced to serve 10 years imprisonment and the right of appeal was explained.

11. From the record, it is clear that the trial court did not consider the time the applicant was in remand. In Ahmed Abolfathi Mohamed v Republic [2018] e-KLR the Court of Appeal held as follows:“Taking into account” the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody. It is not enough for the court to merely state that it has taken into account the period already spent in custody and still order the sentence to run from the date of the conviction because that amounts to ignoring altogether the period already spent in custody. It must be remembered that the proviso to section 333(2) of the Criminal Procedure Codewas introduced in 2007 to give the court power to include the period already spent in custody in the sentence that it metes out to the accused person. We find that the first appellate court misdirected itself in that respect and should have directed the appellant’s sentence of imprisonment to run from the date of arrest on June 19, 2012. ”

12. The Judiciary Sentencing Policy Guidelines states as follows as regards the said provisions of the law:“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.”

13. It is clear that the trial court erred in law in failing to take into account the pre-trial remand custody period.

14. I am therefore entitled to interfere with the sentencing discretion of the trial court.

15. The application succeeds with the result that I hereby allow the application. The applicant is sentenced to 10 years imprisonment less 2 years 11 months, and 23 days, which sentence will commence from the date of conviction.

RULING SIGNED, DATED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 8TH OF DECEMBER 2022. J M BWONWONG’AJUDGEIn the presence of-Mr. Kinyua court assistantThe applicant in personMs. Chege for the respondent