[2022] KEHC 13994 (KLR)

Dudibiya v Republic (Miscellaneous Criminal Application E353 of 2021) [2022] KEHC 13994 (KLR) (Crim) (13 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13994 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Miscellaneous Criminal Application E353 of 2021

JM Bwonwong'a, J

October 13, 2022

Between

Erick Okemu Dudibiya

Applicant

and

Republic

Respondent

(Being an application for review of the sentence imposed by S. Jalang’o (P.M) on 10th September 2021 in Makadara Chief Magistrates Court Sexual Offence No. 150 of 2018 Republic vs Erick Okemo Dudibiya)

Ruling

1. The applicant was convicted of the offence of rape contrary to section 3 (1) (a) (b) of the Sexual Offences Act No 3 of 2006. He was sentenced to serve five (5) years imprisonment. The applicant has now filed a notice of motion for revision of his sentence pursuant to article 49 (h) of the Constitution of Kenya and section 362 of the Criminal Procedure Code(Cap 75) Laws of Kenya.

2. He has applied to be placed on probation. He has also prayed that the court considers the time he spent in custody in accordance with section 333 (2) of the Criminal Procedure Code (Cap 75) Laws of Kenya.

3. Additionally, the applicant has stated that he suffers from ulcers and asthma and that his prolonged stay in prison may lead to irreversible deterioration of his health.

4. When the application came up for hearing, the applicant relied on his mitigation and urged the court to grant the orders sought.

5. Mr Otieno learned prosecution counsel urged the court to consider the issue under section 333 (2) of the Criminal Procedure Code (Cap 75) Laws of Kenya.

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. The power of this court in its revisionary jurisdiction is founded under section 362 of the Criminal Procedure Code, which provides that:'The High Court may call for and examine the record of any criminal proceedings before any subordinate court to satisfy 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. In addition to the foregoing this court is vested with supervisory jurisdiction by article 165 (6) of the Constitution of Kenya, which provides that:'The High Court has supervisory jurisdiction over the subordinate courts and over any person, body, or authority exercising a judicial or quasi-judicial function, but not over a superior court.'

9. On the merits of the application, the applicant seeks a review of his sentence of five (5) years imprisonment. The argument is that the court did not consider the provisions of section 333 (2) of the Criminal Procedure Code (Cap 75), Laws of Kenya, when he was sentenced.

10. Section 333 (2) of the Criminal Procedure Code (Cap 75) Laws of Kenya provides that:'(2)Subject to the provisions of section 38 of the Penal Code 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.

11. I have perused the sentencing notes of the subordinate trial court. I find that the applicant was charged in court on July 24, 2018. He applied for bail/bond and the same was granted.

12. From the record, he could not afford to raise the cash bail. He was therefore in pre-custody until his sentencing on September 10, 2021 having spent 3 years and one month in pre-trial custody.

13. In sentencing the applicant, the trial court considered his mitigation, the punishment prescribed by law and the time spent in remand.

14. I find as persuasive the decision in Ahamad Abolfathi Mohammed & Another v. Republic [2018] e-KLR, in which the 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 theCriminal 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 June 19, 2012. '

15. Furthermore, according to the judiciary sentencing policy guidelines in that regard provide as follows:'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 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.'

16. In this application, the trial court stated that it took into account the pre-trial period, when the applicant was in custody in sentencing him.

17. Although the trial magistrate did not specifically state when the sentence would commence, he considered the pre-trial remand period in sentencing the applicant.

18. The offence of rape as charged attracts a minimum sentence of ten (10) imprisonment.

19. I have borne in mind that sentencing is a matter for the discretion of the trial court. I find that the sentence imposed was justified.

20. The upshot of the foregoing analysis is that the application for revision of sentence is found to be lacking in merit and is hereby dismissed.

JUDGEMENT SIGNED, DATED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 13TH DAY OF OCTOBER, 2022. J M BWONWONG’AJUDGEIn the presence of-Mr. Kinyua court assistantThe applicant in personMr. Kiragu for the Respondent