[2023] KEHC 24985 (KLR)

Kipchirchir v Republic (Criminal Appeal E027 of 2022) [2023] KEHC 24985 (KLR) (9 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24985 (KLR)

Republic of Kenya

In the High Court at Eldoret

Criminal Appeal E027 of 2022

SM Mohochi, J

November 9, 2023

Between

Dissan Kipchirchir

Appellant

and

Republic

Respondent

(Appeal against the sentence in CM Cri Case no 9736 of 2015 - Eldoret, Republic Vs Dissan Kipchirchir, delivered by Hon. Wairimu, P.M. delivered on 08. 01. 2020. )

Judgment

Introduction 1. This is a Petition of Appeals against the sentence of 10 years imprisonment for the offence of preparation to commit a felony c/sec 308(1) of the Penal Codeis filed pursuant to section 333(2) CriminalProcedure Codecap 75, articles 19, 20, 22, 23(1), 25, 27, 28, 29, 50(2)q, 51, 159 & 165 of the Constitution of Kenya based on the following grounds;I.That, the petitioner is seeking for sentence review in accordance to article 50(2) (P) (q) of the Constitution of Kenya 2010. II.That the honorable court allow his sentence to start from 10/12/2015 the date l appeared first in court for plea taking instead of 08/11/2019 the day I was convicted.III.The application be certified as urgent and service thereof be dispensed with it to be heard in the first instance.IV.That, the petition is seeking enforcement of section 333 (2) of the criminal procedure code in relation to sentences that have not factored the time spent in custody.

2. The State Conceded to the applicant’s motion, only to the extent that the sentence be computed from the date which theappellant was committed to stand trial.

3. It should be noted that the applicant was already in prison custody when the offence was committed, in fact the offence relates to preparation to commit a felony namely attempting to escape from lawful custody by being found with an improvised key able to open handcuffs.

4. The Matter came up for hearing on the 25/01/23 where the applicant orally submitted that he had been sentenced to imprisonment for a term of 10 years on the December 19, 2019 after a trial that had lasted almost 5 years and that the judgment and sentence was silent on the period he had remained in custody during his trial.

5. The applicant Prays for review of his sentence to include the pre-trial detention period he served from the December 8, 2015 to the point of conviction and sentencing on the December 19, 2019.

Analysis and Determination 6. The duty of the first appellate court in criminal cases was restated in the case of Charles Mwita v Republic, C A Criminal Appeal No 248 of 2003 (Eldoret) (unreported) where the Court of Appeal, at page 5, recalled that;“In Okeno v R [1972] EA 32 at page 36 the predecessor of this Court stated: - “An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v R [1957] EA 336) and to the appellate court’s own decision on the evidence”.

7. Being a 1st Appeal Court I must, weigh conflicting evidence and draw conclusions, (Shantilal M Ruwalla v R [1957]EA 570) it is not the function of a 1st Appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower courts findings and conclusion; it must make its own findings and draw its own conclusions Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v Sunday Post, [1958] EA 424. ”

8. However, it must be stated that there is no set format to which a re-evaluation of evidence by the first appellate court should conform. The Supreme Court of Uganda in the case of Uganda Breweries Ltd v Uganda Railwavs Corporation[2002) 2 EA 634, thus:“The extent and manner in which evaluation may be done depends on the circumstances of each case and the style used by the first Appellate Court. In this regard, I shall refer to what this court said in two cases. In Sembuyg v Airports Services Uganda Limited |1999) LLR 109 (SCU), Tsekooko JSC said at 11, I would accept Mr. Byenkya's submission if he meant to say that the Court of Appeal did not go into details of the evidence, but that is really a question of style. there is really no set format to which the re-evaluation should conform. A first Appellate court is expected to scrutinize and make an assessment of the evidence but this does not mean that the Court of Appeal should write a judgment similar to that of the (trial), "

9. It was therefore held in http://kenyalaw.org/caselaw/cases/view/68697 David Niuguna Wairimu v Republic 2010 eKLR by the Court of Appeal as follows: -“The duty of the first appellate court is to analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, cone to the same conclusions as those of the lower court. t may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decision."

10. Article 50 (2) p and article 165 (5) of the Constitution affords an accused person fair trial rights that include the right to review, as prescribed by law and that supervisory jurisdiction is bestowed on this court over subordinate courts and tribunals.Article 50Every accused person has the right to a fair trial, which includes the right—“2If convicted, to appeal to, or to apply for review by, a higher court as prescribed by law.”(p)to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing.

11. Section 362 of the CriminalProcedureCode bestows upon the court the jurisdiction to review by calling for and examining the record of any criminal proceedings before a subordinate court for purposes of satisfying itself as to the correctness, legality or propriety of any sentence by a subordinate court.

12. The court’s review jurisdiction in criminal matters is only limited to orders and sentences made by a subordinate court.

13. Section 333(2) of the Criminal Procedure Code provides: -“Subject to the provisions of Section 38 of the Penal Code, 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 sub section (1) has prior, to such sentence shall take account of the period spent in custody.”

14. It is clear from the above proviso that, the law requires courts while sentencing do consider the period the accused spent in custody.

15. The same court in Bethwel Wilson Kibor v Republic [2009] eKLR expressed itself as follows:-“By proviso to section 333(2) of the Criminal Procedure Code where a person sentenced has been held in custody prior to such sentence, the sentence shall take into account of the period spent in custody. Ombija J, who sentenced the appellant did not specifically state that he had taken into account the 9 years period that the appellant had been in custody. The appellant told us that as at September 22, 2009 he had been in custody for 10 years and one month. We think that all these incidents ought to have been taken into account in assessing sentence. In view of the foregoing, we are satisfied that the appellant has been sufficiently punished. We therefore allow this appeal and reduce the sentence to the period that the appellant has already served. He is accordingly to be set free forthwith unless otherwise lawfully held.”

16. According to The Judiciary Sentencing Policy Guidelines:“The proviso to section 333(2) of the Criminal Procedure Code obligates the court to consider the time already served in custody if the convicted person had been in custody during the trail. 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.”

17. Thus, I am persuaded that the learned magistrate was in error not to remain alive to the period the Applicant had spent in custody during trial and factor in the same in his sentence.

18. Thiscourtfinds merit in the Petition and allows the same. The court accordingly reviews the applicant imprisonment sentence as imposed to run from the December 8, 2015.

19. All other elements in the sentence remain unaffected by this review.

It is so Ordered

SIGNED, DATED AND DELIVERED VIRTUALLY AT NAKURU ON THIS 9TH NOVEMBER 2023. ..........................MOHOCHI S.MJUDGE