[2023] KEHC 25109 (KLR)

Ekeno v Republic (Miscellaneous Criminal Appeal E080 of 2023) [2023] KEHC 25109 (KLR) (9 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25109 (KLR)

Republic of Kenya

In the High Court at Lodwar

Miscellaneous Criminal Appeal E080 of 2023

RN Nyakundi, J

November 9, 2023

Between

Alex Ekeno

Applicant

and

Republic

Respondent

(An Application for Review on sentence in Criminal Case E063 of 2021 dated 13/6/2022 by D.Orimba (SPM))

Judgment

1. The applicant was charged in the lower court with the offence of defilement contrary to section 8(1) as read with section 8(4) of the sexual offences Act No. 3 of 2006. The said count had an alternative charge of committing an indecent act with a child contrary to section 11(1) of the sexual offences Act No. 3 of 2006. The applicant was convicted of the said charge and a sentence of 7 years was imposed. The applicant being aggrieved preferred an appeal challenging the impugned judgment on the basis of section 333(2) of the Criminal Procedure Code.

2. The applicant now seeks review of the sentence pursuant to Section, 362, 364, & 333(2) of the Criminal Procedure code. The applicant prays that the court considers the said provision and take into account the time he has been in custody.

Analysis and Determination 3. I have considered the application and the court’s mandate is to determine the application of section 333(2) of the Criminal procedure code. The section provides as follows:(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.

4. The Judiciary Sentencing Policy Guidelines are also clear in this respect. They require that the court should take into account the time already served in custody if the convicted person had been in custody during the trial. Further, that a failure to do so would impact on the overall period of detention which would result in excessive punishment that in turn would be disproportionate to the offence committed.

5. In Ahamad Abolfathi Mohammed & another v Republic [2018] eKLR 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 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 June 19, 2012. ”

6. The punishment prescribed by the law for the offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years. I therefore find the sentence meted to be reasonable and lenient.

7. The Applicant was convicted on 13th June, 2022 when judgment was read out and after mitigation, he was sentenced to serve 7 years imprisonment. The court in sentencing the Applicant was not clear on the commencement date of the sentence. I share the same thoughts as the court in Ahamad Abolfathi Mohammed & another v Republic [2018] eKLR that the trial court should have directed the applicant’s sentence of imprisonment to run from the date of arrest on 11th December, 2021.

8. Therefore, in consonance with Section 333(2) Criminal Procedure Code; computation of the sentence ought to include the period the Accused person was in custody during hearing and determination of the case before sentence was meted out. I echo the principles in in the case of Rwabugande Moses versus SCCA25/204 where the court observed inter – alia that it is our view that the taking into account of the period spent on remand by a court is necessary arithmetical. This is because the period is known with certainty and precision: consideration of the remand period should therefore necessarily mean reducing or subtracting that period from the final sentence. That period spent in lawful custody prior to the trial must be specifically credited to an accused.”

9. Section 333(2) of the CPC reflects the general rationale for giving credit for any time spent in remand custody awaiting trial and determination of the criminal charge which should be credited day for day. As the legislature is presumed to have created a coherent, consistent, and harmonious statutory scheme Section 333(2) should be interpreted in a manner that is consistent with the constitutional principles and purposes set out in the criminal procedure code. A rule that results in longer sentences for convicts who did not obtain bail pending trial compared to otherwise identical convicts is incompatible with the sentencing principles of parity and proportionality. This should be borne in mind given that our vulnerable and impoverished offenders are less able to access bail. Plainly from a constitutional perspective crediting a single day for every single day spent in remand custody pending trial and judgement in a criminal court is often insufficient to account for the full impact of that detention both qualitatively and quantitatively. Once the sentencing court exercises discretion in favour of a custodial sentence the writing is in the legal wall to justify eligibility of the convict for the period spent in remand custody. Given this statutory provisions, a trial court should not deny credit without good and sufficient reasons. To do so, to me offends one’s sense of fairness, for incarceration at any stage of the criminal proceedings is a denial of an accused’s right to his or her dignity, freedom and security, and liberty.

9. From the record, the Applicant was placed in remand custody pending trial on 11th December, 2021. He was later to be sentenced on 13th June, 2022. The 7 years ought to start running from 11th December, 2021 when he was placed in custody to 13th June 2022 for the sentenced of 7 years imprisonment imposed by the trial court.

10. The sentencing process and its outcome are within the mandate of the trial court. However, since circumstances vary from a case to another, this court shall intervene in exercise of revision pursuant to Article 362 & 364 of the CPC to credit the period in remand custody.The Applicant’s Miscellaneous Application is allowed as follows;a.Section 333(2) CPC mandates the 7 years imprisonment sentence granted by the Trial Court on 13th June, 2022 served by the Applicant shall be computed to include the period the Applicant was in custody before sentence, to commence from 11 December 2021 – 13th June 2022.

11. It is so ordered

DATED AND SIGNED AT LODWAR THIS 9TH DAY OF NOVEMBER, 2023In the presence ofMr. Okaka for the DPPApplicant............................R. NYAKUNDIJUDGE