[2022] KEHC 10389 (KLR)

Gumba v Republic (Criminal Petition E030 of 2021) [2022] KEHC 10389 (KLR) (17 May 2022) (Judgment)

Neutral citation: [2022] KEHC 10389 (KLR)

Republic of Kenya

In the High Court at Kisumu

Criminal Petition E030 of 2021

JN Kamau, J

May 17, 2022

Between

Brian Okoth Gumba

Petitioner

and

Republic

Respondent

Judgment

1. The Petitioner herein was tried and convicted for the offence of defilement contrary to Section 9(1) as read with Section 9(2) of the Sexual Offences Act No 3 of 2003. He was sentenced to ten (10) years imprisonment.

2. He filed this Petition for review of the sentence on 27th April 2021. In his application that was supported by his Affidavit, he contended that his application was premised on Section 333(2) of the Criminal Procedure Code.

3. In his Written Submissions that were filed on 27th April 2021, he contended that he had undergone several rehabilitation and reformation programs such as floriculture and grafting of trees (horticulture)which if given a chance, he would use that opportunity to educate the youth on how to fend for themselves.

4. He added that while in incarceration, he had acquired skills in carpentry and joinery Grade I, II and II and that he had filed his Certificates as proof of the same. He believed that the skills he had acquired would enable him fend for himself and not to indulge in criminal activities.

5. He pleaded with this court to consider that he was remorseful for what happened. He averred that he had learnt his lesson. He asserted that if given a second chance to reintegrate back to the society, he would not indulge in criminal activities again. He contended that he was a first offender and prayed for the leniency of the court.

6. He urged the court to invoke Section 333(2) of the Criminal Procedure Codeand the case of Abolfathi Mohamed and Said Mansour Mousavi vs Republic (eKLR citation not given) where the courts were required to consider the period the accused spent in custody during trial. He submitted that he was arrested on 31st January 2015 and sentenced on 17th November 2016.

7. The Respondent opposed his Petition for the reason that there was overwhelming evidence against him in the matter. It added that the offence was against a young girl aged nine (9) years and his act would be engraved in her life forever.

8. It further contended that he had not informed this court sufficient reasons as to his ability to benefit from a reduction of the sentence if at all the court granted his prayer. It was its submission that the sentence was not unconstitutional as it was the mandatory sentence as was provided by the law. It urged this court to dismiss his Petition and uphold his conviction and sentence.

9. It, however, conceded that the Petitioner spent close to one (1) year and nine (9) months in remand while his matter was ongoing.

Legal Analysis 10. The Petition herein was premised on Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya). The said Section provides that:“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” (emphasis court).

11. 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 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 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.”

12. The duty to take into account the period an accused person had remained in custody in accordance with Section 333(2) of the Criminal Procedure Codewas restated by the Court of Appeal in Ahamad Abolfathi Mohammed & Another vs Republic [2018] eKLR.

13. There was no dispute that the Petitioner had spent close to one (1) year nine (9) months in remand during trial. Be that as it may, a reading of the Trial Court’s proceedings on 17th November 2016, showed that the Trial Court took into consideration the time he spent in remand before sentencing. The Trial Court rendered itself as follows:-“I have considered the nature of the offence, the fact that the accused person is a first offender, the sentencing policy and the period the accused has been in remand. I have also noted that the accused person is not remorseful at all. I hence sentence the accused person to serve imprisonment for a period of ten years.” (emphasis court).

14. As the Trial Court took into account the provisions of Section 333(2) of the Criminal Procedure Code when sentencing the Petitioner herein, this court was therefore found not persuaded that this was a suitable case for it to exercise its discretion and grant the orders the Petitioner had sought.

Disposition 15. For the foregoing reasons, the upshot of this Court’s decision was that the Petitioner’s Petition for review filed on 27th April 2021 was not merited and the same be and is hereby dismissed.

16. It is so ordered.

DATED AND DELIVERED AT KISUMU THIS 17TH DAY OF MAY 2022J. KAMAUJUDGE