[2022] KEHC 11720 (KLR)

Epimi v Republic (Miscellaneous Criminal Application E081 of 2021) [2022] KEHC 11720 (KLR) (13 May 2022) (Judgment)

Neutral citation: [2022] KEHC 11720 (KLR)

Republic of Kenya

In the High Court at Kisumu

Miscellaneous Criminal Application E081 of 2021

JN Kamau, J

May 13, 2022

Between

Henry Epimi

Applicant

and

Republic

Respondent

(judgment of November 7, 2019, Cherere J Criminal Appeal 13 of 2018 )

Judgment

1. The applicant herein was tried and convicted of the offence of gang rape contrary to section 10 of the Sexual Offences Act. He was sentenced to twenty (20) years imprisonment.

2. Being dissatisfied with the said decision, he appealed to the High Court in HCCRA No 13 of 2018 where the court upheld his conviction but substituted his twenty (20) years imprisonment with ten (10) years imprisonment.

3. He filed this application for review of his sentence pursuant to section 333(2) of the Criminal Procedure Codeon September 30, 2021. In his said application that was supported by his affidavit, he averred that the period of four (4) years he spent in remand was not considered during the calculation of his sentence.

4. He pleaded with this court to consider the same as the omission by the trial court was not in line with his constitutional right to fair trial as provided for under Article 25(2) of the Constitution of Kenya, 2010which includes the imposing of an appropriate sentence and right to equality to enjoy the benefits of section 333(2) of the Criminal Procedure Code.

5. In a document titled “miscellaneous application” that was filed onSeptember 30, 2021 and which the court deemed to have been his written submissions, he urged this court to consider the time he spent on remand during trial. In that regard, he placed reliance on the case of Abolfathi & Another v Republic [2018] eKLR where the court held that while applying section 333(2) of the Criminal Procedure Code, the sentence of imprisonment ought to run from the date of arrest.

6. On its part, thestate submitted that the applicant was arrested on July 1, 2014 and released on bond on theAugust 3, 2015. It added that he was convicted on January 31, 2018. It averred that he had been in custody for one (1) year, one (1) month and two (2) days before he was sentenced. It therefore urged this court to uphold conviction and sentence but consider the period he spent in custody.

Legal Analysis 7. The applicant’s application was based on section 333(2) of the Criminal Procedure CodeCap 75 (Laws of Kenya). The aforesaid section provides as follows:-“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.”

8. This duty is also contained in the Judiciary Sentencing Policy Guidelines (under clauses 7. 10 and 7. 11)where it is provided that: -“The proviso to section 333 (2) of the Criminal Procedure Codeobligates 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.”

9. In her judgment of November 7, 2019, Cherere J held as follows:-“The appellants are first offenders. The 20 years’ sentence imposed on them is substituted with an imprisonment term of 10 years which will run from January 31, 2018when they were sentenced.” (emphasis court).

10. A reading of the aforesaidjudgement showed that the learned judge did not expressly indicate if she took the period theapplicant spent in remand before conviction and sentencing into consideration. She may have very well taken the same into account considering that a trial and/or appellate court has discretion to incorporate such period in a sentence that is to be meted out.

11. This court was alive to the fact that the said learned judge was of equal and competent jurisdiction as it was. Its hands were therefore tied as it could not purport to review and/or vary and/or sit on appeal on the decision of the said learned judge as her pronouncement of when the applicant’s sentence was to commence was clearly spelt out.

12. If she inadvertently overlooked the provisions of section 333(2) of the Criminal Procedure code, which this court cannot confirm, the only option that was left to the applicant herein was for him to appeal the decision of the said learned judge at the Court of Appeal as she had since left the jurisdiction of this court.

Disposition 13. For the foregoing reasons, the upshot of this court’s decision was that the applicant’s application for review of sentence that was lodged on September 30, 2021 was not merited and the same be and is hereby dismissed.

14. It is so ordered.

DATED AND DELIVERED AT KISUMU THIS 13TH DAY OF MAY 2022J. KAMAUJUDGE