[2021] KEHC 6135 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CRIMINAL DIVISION - MILIMANI COURT

CRIMINAL REVISION NO. 174 OF 2019

DENNIS MULI............................................................................................APPLICANT

VERSES

REPUBLIC...............................................................................................RESPONDENT

RULING

1. Dennis Muli, the Applicant, was charged with the offence of being in possession of an imitation of firearm contrary to Section 34(1) as read with Section 34(3) of the firearms Act, Cap 114of the laws of Kenya. Particulars being that on the 14th day of September, 2015, at Kayole Estate in Embakasi Sub County within Nairobi County, he was found with the imitation of a firearm with the intent to commit a felony.

2. Having been taken through full trial, he was found guilty, convicted and sentenced to serve 7 years imprisonment but the sentence was to commence of 1/10/2015, when he was first arraigned in court.

3. Consequently, the entry on the committal warrant indicated that he was to serve 4 years imprisonment.

4. Aggrieved by the sentence, the Applicant seeks this court’s intervention by reviewing the sentence imposed by taking into account time spent in remand custody during trial. And, in particular, he seeks to be given a non-custodial sentence.

5. The State through learned Counsel, Ms. Kimaru conceded the application. She submitted that the Applicant was sentenced to serve 4 years imprisonment on the 17. 11. 2018, and having been in custody, the period should have been considered.

6. Section 333(2) of the Criminal Procedure Code provides thus:

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 Subject 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. In the case of Ahamad Abolfathi Mohammed & Another vs. Republic [2018] eKLRthe Court of Appeal held 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, thecourt 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….”

8. It was a requirement for the court to take into account time spent in custody by the Applicant. Section 34(1) and (3) of the Act that is in respect of use and possession of firearms or imitation firearms provides as follows:

(1) If any person makes or attempts to make any use of a firearm or an imitation firearm with intent to commit any criminal offence he shall be guilty of an offence and liable to imprisonment of not less than seven, but not exceeding fifteen years, and where any person commits any such offence he shall be liable to the penalty provided by this subsection in addition to any penalty to which he may be sentenced for that other offence.

(2) In this section, “imitation firearm” means anything which has the appearance of being a firearm, whether it is capable of discharging any shot, bullet or other missileor not.

9. Per the ruling on sentence, the trial court stated thus:

“I have considered the circumstances surrounding the offence and the mitigation by the Accused persons.

I also have to consider the time the accused have spent in custody as I am enjoined to do under Section 333 of the CPC. The accused have been in custody for 3 years now.

I make the following order:

……………

Count 4

A 3 is to serve 7 years with the sentence to commence on 1/10/15 as well…..”

10. The minimum prescribed sentence for the offence as charged, is seven (7) years imprisonment, a sentence that was imposed. In doing so the trial court not only took into consideration time spent in remand custody but also ordered the sentence to take effect from a specific date, namely the date of first appearance, hence the 4 years imprisonment period indicated on the committal warrant.

11. The upshot of the above is that the application lacks merit.

Accordingly, it is dismissed.

DATED, SIGNED AND DELIVERED THIS 10TH DAY OF JUNE, 2021.

L. N. MUTENDE

JUDGE