[2023] KEHC 25332 (KLR)

Biwot v Republic (Criminal Revision E244 of 2022) [2023] KEHC 25332 (KLR) (Crim) (15 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25332 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Revision E244 of 2022

LN Mutende, J

November 15, 2023

Between

Cosmas Biwot

Applicant

and

Republic

Respondent

Ruling

1. Cosmas Biwot, applicant, was charged, convicted and sentenced for the offence of Stealing contrary to section 268(1) as read with section 275 of the Penal Code. Particulars of the offence were that he stole Ksh. 400,000/- worth of Mpesa float. In the result he was sentenced to pay a fine of Ksh. 100,000 and in default serve two (2) years imprisonment. Further, he was required to compensate the complainant the sum stolen. This was to take precedence over the fine. Through an undated Application filed herein on September 22, 2022, he seeks revision and in particular consideration of the period of ten (10) months that he spent in remand custody pursuant to section 333(2) of the Criminal Procedure Code.

2. The Application is brought on the grounds that the appellant was a first offender and very is remorseful.

3. The respondent through Ms Chege, learned Prosecution Counsel partially conceded the application because the ten(10) months the applicant spent in custody were not considered. Secondly, that the default sentence of the fine imposed should have been one (1) year imprisonment. Further, that by the trial court ordering the offender to pay compensation without a default, sentence it, created uncertainty.

4. This court has the jurisdiction to review the verdict of the subordinate court where it has exceeded its limit of jurisdiction or where there is incorrectness, an illegality and impropriety. The revisional jurisdiction is provided by section 362 of the Criminal Procedure Code (CPC) that provides 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.

5. The punishment in respect of the offence of stealing is provided for by section 275 of the Penal Code that enacts thus:Any person who steals anything capable of being stolen is guilty of the felony termed theft and is liable, unless owing to the circumstances of the theft or the nature of the thing stolen some other punishment is provided, to imprisonment for three years.

3. The trial court having opted to fine the applicant, was obligated to comply with section 28 of the Penal Code that provides thus:(2)In the absence of express provisions in any written law relating thereto, the term of imprisonment or detention under the Detention Camps Act (cap 91) ordered by a court in respect of the non-payment of any sum adjudged to be paid for costs under section 32 or compensation under section 31 or in respect of the non-payment of a fine or of any sum adjudged to be paid under the provisions of any written law shall be such term as in the opinion of the court will satisfy the justice of the case, but shall not exceed in any such case the maximum fixed by the following scale—Amount ……………………………….Maximum periodExceeding Sh. 50,000 … … … 12 monthsImposing a default sentence of two (2) years imprisonment was improper.

6. On the question of incarceration during trial, section 333 of the Criminal Procedure Code 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.

7. That provision of the law applies in mandatory terms and it is the accused person’s entitlement. The court is required to state that it considered the period spent in remand and it must further deduct that period from the sentence meted out.This was stated in the case of Ahamad Abolfathi Mohammed & another vs Republic [2018] eKLR where the Court of Appeal delivered itself that:“The second is the failure by the court to take into account in a meaningful way, the period that the appellants had spent in custody as required by section 333(2) of the Criminal Procedure Code. By dint of section 333(2) of the Criminal Procedure Code, the court was obliged to take into account the period that they had spent in custody before they were sentenced. Although the learned judge stated that he had taken into account the period the appellants had been in custody, he ordered that their sentence shall take effect from the date of their conviction by the trial court. With respect, there is no evidence that the court took into account the period already spent by the appellants in custody. “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 Code was 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 appellants’ sentence of imprisonment to run from the date of their arrest on 19th June 2012. ”

8. In the case of Bukenya v Uganda (Criminal Appeal No. 17 of 2010) [2012] UGSC 3 (29 January 2013) the Court of Appeal stated that:“Taking the remand period into account is clearly a mandatory requirement. As observed above, this Court has on many occasions construed this clause to mean in effect that the period which an accused person spends in lawful custody before completion of the trial, should be taken into account specifically along with other relevant factors before the court pronounces the term to be served. The three decisions which we have just cited are among many similar decisions of this Court in which we have emphasized the need to apply Clause (8). It does not mean that taking the remand period into account should be done mathematically such as subtracting that period from the sentence the Court would give. But it must be considered and that consideration must be noted in the judgement”

9. In this case the applicant was arraigned on 16th day of July, 21, and, was sentenced on May 24, 2022. The ten months he was custody should have been considered by the lower court.

10. On the issue of compensation that was to take precedence of payment of the fine imposed. It is lawful for a court to order compensation of a victim. However, the order should be made with some clarity. There is a lacuna in the order of the court as the question begging is what happens if the sum ordered is not paid. The incorrect order calls for correction.

11. The upshot of the above is that the application has merit and is allowed. The applicant shall be released forthwith unless otherwise lawfully held.

12. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS AT NAIROBI, THIS 15th DAY OF NOVEMBER, 2023. L. N. MUTENDEJUDGEIN THE PRESENCE OF:Applicant/AccusedMs. Akunja for ODPPCourt Assistant – Mutai