[2022] KEHC 2293 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CRIMINAL DIVISION- MILIMANI

MISCELLANEOUS APPLICATION NO. E330 OF 2021

JAMES KARIMI NJAGARA..................................................................APPLICANT

VERSUS

REPUBLIC............................................................................................RESPONDENT

RULING

1. James Karimi Njagara, the Applicant, was arraigned, tried, convicted and sentenced to serve five (5) years imprisonment for the offence of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act. He has moved this court for revision of the sentence. He prays that the period spent in custody be taken into account.

2. The application is supported by an affidavit deponed by the applicant who deposes that the period of twenty-two (22) months he spent in remand custody was not taken into account; that he is a changed man and that he will never engage in criminal activities. That he has reformed and he is an evangelist.

3. The State through learned counsel, Mr. Kiragu, opposed the application. It was urged that the trial court considered time spent in custody and that the sentence should not be reviewed.

4. The particulars of the offence were that on 23rd May 2019 at [particulars withheld] in Embakasi Sub-County in Nairobi, the applicant intentionally and unlawfully caused his genital organ namely penis to penetrate the genital organ namely vagina, of J.M.W, a girl aged 16 years.

5. The age of the complainant was proved by evidence of a birth certificate. Prior to sentencing, the trial court considered mitigation as submitted by the applicant, time spent in remand and the age of the victim. The applicant was arraigned on 27th May, 2019 and was sentenced on 12th March, 2021 thus spent one (1) year eleven (11) months in remand custody.

6. Section 362 of the Criminal Procedure Code (CPC) clothes this court with power to call for the record of the subordinate court so as to satisfy itself on the correctness, legality and/or propriety of the proceedings, order or sentence made, and in doing so, the court acts in its supervisory jurisdiction .

7. Section 362 and 364 of the Criminal Procedure Code provide as follows:

Section 362

The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.’’

Section 364

In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may-in the case of any other order other than an order for acquittal, alter or reverse the order.

8. This court has been called upon to deduct time spent in custody pursuant toSection 333 (2)of the Criminal Procedure Code (CPC) that 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.

9. In the case ofAhamad Abolfathi Mohammed & Another vs. 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 19th June 2012. ”

10. This court can only intervene to regularize the record to reflect the actual intention of Section 333 (2)of the CPC and to avoid any miscarriage of justice.

11. Proceedings of the trial court are clear. It is apparent that the trial magistrate considered time spent in custody. The court computed the time as two (2) years. The trial court’s statement that it had considered the time spent in remand was sufficient and therefore there was no error or impropriety to be regularized by this court.

12. This court has limited power under Section 362 of the CPC. To reduce or alter a sentence, this would call upon the applicant to demonstrate that the sentence was illegal, improper or that it was manifestly excessive.

13. In the case ofOgolla s/o Owuor vs. Reginum [1954] EACA 270 the Court of Appeal held that:-

"The Court does not alter a sentence unless the trial Judge has acted upon wrong principles or overlooked some material factors”. To this, we would add a third criterion namely, “that the sentence is manifestly excessive in view of the circumstances of the case (R - v- Shershowsky (1912) CCA 28TLR 263)." See also Omuse - v- R (supra) while in the case of ShadrackKipkoechKogo - vs - R., Eldoret Criminal Appeal No.253 of 2003 the Court of Appeal stated thus:-

sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered (see also Sayeka -vs- R. (1989 KLR 306)”

14. The record of the trial court clearly show that the court exercised discretion within the law. The statutory sentence under Section 8(4) of the Sexual Offences Act is ten (10) years imprisonment but the applicant was sentenced to serve five (5) years imprisonment after the court exercised the discretion that it had then, following the jurisprudence that emanated from the decision of Francis Karioko Muruatetu vs. Republic (2017) eKLR; where courts were of the view that they had discretion in sentencing offenders in such matters.

15. The upshot of the above is that the trial court took into account time spent in custody. There was no misdirection on the part of the court. Therefore, the application fails and is accordingly dismissed.

16. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY, THIS 10TH DAY OF FEBRUARY, 2022.

L. N. MUTENDE

JUDGE

IN THE PRESENCE OF:

Applicant

Ms. Ogweno holding brief for Mr. Mutuma for ODPP

Mutai - Court Assistant