[2023] KEHC 25115 (KLR)

Erukudi v Republic (Miscellaneous Criminal Appeal E086 of 2023) [2023] KEHC 25115 (KLR) (9 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25115 (KLR)

Republic of Kenya

In the High Court at Lodwar

Miscellaneous Criminal Appeal E086 of 2023

RN Nyakundi, J

November 9, 2023

Between

Lojore Erukudi

Applicant

and

Republic

Respondent

Ruling

1. The applicant was charged in the lower court with the offence of defilement contrary to section 8(1) as read with section 8(2) 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 10 years was imposed. The applicant being aggrieved preferred a revision challenging the impugned sentence on the basis of section 333(2) of the Criminal Procedure Code. The substratum of the application is premised in the undated notice of motion which provides the following background information:1. That my lord, I was arrested, charged, tried and sentenced to ten (10 years imprisonment for an offence of defilement c/o 8(1) as read with 8(4) of the sexual offence act. No 3 of 2006 judgement dated 23/2/2023 in the magistrate court at Kakuma by Hon. C.A Mayambe2. That: My lordship, 9 months I spent in custody was not considered during my time of conviction, Hence section 333(2) of the criminal procedure code required a sentencing court to take into the period that a convicted person spent has spent in custody period to sentence3. That: the applicant has no previous record4. That the applicant request the higher court to consider his prayers based on the article mention herein.

2. The applicant now seeks review of the sentence pursuant to Section 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 of eleven years or less is liable upon conviction to life imprisonment. I therefore find the sentence meted to be reasonable and too lenient.

7. The Applicant was convicted on 12th January, 2023 when judgment was read out and after mitigation, he was sentenced to serve 10 years imprisonment. The court in sentencing the accused person was not clear on when the sentence would start running. 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 14th August, 2022.

8. Therefore, in consonant 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. The rationale for enhanced credit is qualitative in nature for the following reasons. Remand custody facilities in Kenya tend not to focus on rehabilitation or reformation of the remandees for there is no provision of educational, or technical retraining programs that are accorded to anyone of them within the correctional sentence. Consequently, it is the task of the trial court to interpret the circumstances referred in section 333(2) of the CPC and that consideration did not be exceptional.

9. The Applicant was placed in custody on 14th August, 2022 and sentenced on 12th January, 2023 to10 years imprisonment ought to have been ordered by the trial court to be effected from 14th August 2022 and not 12th January 2023 the date of the impugned verdict.

10. The sentencing process and its outcomes are within the mandate of the trial court. However, since circumstances vary from a case to another, this court shall intervene in exercise of its revisionary jurisdiction pursuant to Article 165(6) & (7) of the constitution, Section 362 & 364 of the CPC.

11. In so far as the merits of this application is concerned, I am of the considered opinion that the warrant of commitment to prison be amended to accommodate the spirit of section 333(2) of the CPC. It is so ordered.

DATED AND SIGNED AT LODWAR THIS 9TH DAY OF NOVEMBER, 2023In the presence of:Mr. Okaka for the ODPPAppellant............................R. NYAKUNDIJUDGE