[2023] KEHC 25959 (KLR)

Isaya v Republic (Miscellaneous Criminal Appeal E082 of 2023) [2023] KEHC 25959 (KLR) (29 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25959 (KLR)

Republic of Kenya

In the High Court at Lodwar

Miscellaneous Criminal Appeal E082 of 2023

RN Nyakundi, J

November 29, 2023

Between

Ekai Ereng Isaya

Applicant

and

Republic

Respondent

(Being an appeal from the original conviction on sentence in the Resident Magistrate Court at Kakuma Sexual Offences Case No. E025 of 20222 by Hon. C A Mayamba (PM) dated 15th February, 2023)

Ruling

1. The applicant was charged in the lower court with the offence of an imbecile contrary to section 146 of the Penal code Cap 63, of Laws of Kenya. The said count had an alternative charge of committing an indecent act with an adult contrary to section 11(A) 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 an application 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 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. This Court associates itself with the decision of the High Court by Hon. G. V. OdungaJin Vincent Sila Jona & 87others vs Kenya Prison Service & 2others [2021] eKLR where a joint petition was filed by 51 Petitioners whose sentences had not taken into account the time spent in remand and in order to enhance fundamental rights and freedoms of Petitioners while upholding the intention of the sentencing Court sought declaration on compliance with Section 333(2) CPC. The Court held as follows;"A declaration that Trial Courts are enjoined by Section 333(2) of the Criminal Procedure Code, in imposing sentences, other than sentence of death to take into account of the period spent in custody.A declaration that those who were sentenced in violation of the said section are entitled to have their sentences reviewed by the High Court in order to determine their appropriate sentences.A declaration that Section 333(2) CPCapplies to the original sentence as well as sentence imposed during resentencing………"

6. The requirement to comply with Section 333(2)CPC is mandatory in computation of the sentence to be served by the Convict upon sentencing. The requirement is also amplified by the Judiciary Sentencing Policy and thus an integral part of sentencing process to avoid excessive punishment that is not proportional to the offence committed and sentence lawfully prescribed and contrary to Article 29 (a) & Article 50 CoK2010.

7. The punishment prescribed by the law for the offence of rape of an imbecile is imprisonment with hard labour for fourteen years. I am alive to the fact that it is in the trial court’s discretion to mete a reasonable sentence considering the circumstances of each case. I therefore find the sentence meted to be reasonable and lenient.

8. The Applicant was convicted on 15th February, 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] eKLRthat the trial court should have directed the applicant’s sentence of imprisonment to run from the date of arrest on 18th October, 2022.

9. 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.

10. The Accused was placed in custody on 18th October, 2022 and sentenced on 15th February, 2023. The 10 years ought to start running from October, 2022 when he was placed in custody to February 2023 when he was sentenced to serve 10 years imprisonment.

11. 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 165(3)CoK where mandatory provisions of the law have not been complied with.The Applicant’s Miscellaneous Application is granted as follows;

12. Section 333(2)CPC mandates the 10 years imprisonment sentence granted by the Trial Court on 15th February 2023, served by the Applicant shall be computed to include the period the Applicant was in custody before sentence, to commence from 18th October, 2022. It is so ordered.

DATED AND SIGNED AT LODWAR THIS 29TH DAY OF NOVEMBER, 2023………………………………….R. NYAKUNDIJUDGE