[2022] KEHC 14187 (KLR)

Kisilu v Republic (Criminal Appeal E150 of 2021) [2022] KEHC 14187 (KLR) (13 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14187 (KLR)

Republic of Kenya

In the High Court at Machakos

Criminal Appeal E150 of 2021

MW Muigai, J

October 13, 2022

Between

Raphael Kyalo Kisilu

Applicant

and

Republic

Respondent

Ruling

BACKGROUND 1. The Applicant was charged together with 2 others with the offence of Vandalism of electrical apparatus contrary to Section 64 (4) (b) of Energy Act No 12 of 2012 .

2. The particulars of the offence are that on the 9th day of January 2016 at Nairobi National Park within Nairobi County, jointly willfully and unlawfully vandalized electricity transmission cables to with 950 meters valued at Kshs 5,500,000/- the property of Kalpataru Power Transmission Company Limited.

3. In the alternative, he was charged with handling stolen goods contrary to section 322(1) as read together with section 322 (2) of the Penal Code

4. The particulars of the offence are that on the 9th day of January 2016 at Nairobi National Park within Nairobi County, otherwise than in the course of stealing dishonestly retained electricity transmission cabled to wit 950 Metre valued at Kshs 5,500,000/- the property of Kalpataru Power Transmission Company Limited Knowingly or having reason to believe it to be stolen or unlawfully obtained.

5. In Count II, he was charged with entering into a National Park with Livestock contrary to section 102 (1) (a) of the Wildlife Conservation and Management Act, 2013.

6. The particulars of the offence are that on the 9th day of January 2016 at Nairobi National Park within Nairobi County, you were jointly found to have illegally entered Nairobi National Park.

7. The Applicant was found guilty of the first count and sentenced to a fine of Kshs 5,000,000/- in default 10 years imprisonment. He was acquitted of the second count vide the Trial Court Judgment delivered on 28th April, 2017.

Appeal 8. The Applicant appealed to this Court via Criminal Appeal 55 of 2017 and the conviction and sentence were upheld by Hon. Justice D.K Kemei vide judgment Dated 17th September 2018. Chamber Application

9. Vide a Chamber Summons filed on 30th of September 2021, the Applicant seeks the following orders;a.Spentb.Thatthe Applicant’s sentence passed y Hon. P. Ooko P.M at Mavoko court and which was upheld by the High Court of Machakos be reviewed.c.Thatthe Honourable Court be leased to issue any other appropriate orders and directive or relief as it may deem, fit and just to defend, uphold and protect the Constitution.

10. The Applicant filed a supporting Affidavit on 30th September 2021 in which he deposed that he was arrested and charged with the offence of vandalism contrary to Section 64(4) (b) of the Energy Act No 12 of 2012 on the 9th of January 2016 and later convicted and sentenced to serve 10 years imprisonment on 28th of April 2017. He contended that he had spent 16 months in remand which he asked the Court to consider while invoking Section 137 (1), (2), (a) and Section 333 (2) of the Criminal Procedure Code. He opined that he acquired skills in mechanic and gone through Biblical studies among other trainings within the Prisons Reforms initiatives. He prayed for a sentence reduction, a non- custodial sentence or that he be set at liberty.

Applicant Submissions 11. The Applicant filed submissions in which he reiterated the contents of his affidavit and further submitted that when he was sentenced, the court did not specify when the sentence would commence. He contends that prison interpreted that the sentence would start from the date the sentence was read in court. Reliance was placed on Section 333 (2) of the Criminal Procedure Code, Paragraph 7. 10 and 7. 11 of the Sentencing Policy Guidelines and the case of Ahamad Abolfathi Mohammed & Another vs Republic [2018] eKLR.

Respondent Submissions 12. The Respondent filed submissions in opposition of the Application and contended that the 1year 3 months and 18 days were factored in the sentence. Reliance was placed on the case of Bernard Kimani Gacheru vs Republic [2002] eKLR and the case of Ahamad Abolfathi Mohammed & Another vs Republic.

Determination 13. I have considered the application and the submissions on record.

14. First and foremost, the prayer for a non-custodial sentence can only be dealt with by the Court of Appeal, unless and until the decision is overturned, it remains regular and legal; and cannot be reopened by a court of similar jurisdiction.

15. It is important to note that the applicant appealed to the High court against conviction and sentence and in determining the appeal the High court considered the propriety of the conviction and sentence. The sentence imposed by the Trial Court was already reviewed by the High Court.

16. By virtue of Article 50(2) of the Constitution, this court can review its own decision. This proviso gives the right to every accused person of a fair trial which includes:-“If convicted, to appeal to, or to apply for review by, a higher court as prescribed by law.”

17. As regards computation of time, 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.”

18. According to The Judiciary Sentencing Policy Guidelines:“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 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.”

19. In the case of Bethwel Wilson Kibor vs Republic [2009]eKLR, the court 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 22nd September 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.”

20. I am also persuaded by the finding of the Court of Appeal in the case of Ahamad Abolfathi Mohammed & Another vs Republic [2018]eKLR where it 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. ”

21. From the record, the charge sheet/information, the Appellant was arrested on 10th of January 2016 and arraigned in Court the next day. The Trial Court record does not confirm that the Appellant was granted bond and was released from custody. The Trial Court judgment does not indicate whether the time spent in custody was taken into consideration when arriving at its decision. In light of the foregoing facts and review of the Law, the Court finds as follows;

Dispositiona.Pursuant to Section 333(2) of the Criminal Procedure Code, the 10 year imprisonment sentence will be computed to take into account the (one) 1 year and 3 months.b.The sentence will run from the date of arrest, 10th January 2016It is so ordered.

DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 13TH DAY OF OCTOBER, 2022. (VIRTUAL/PHYSICAL CONFERENCE)M.W MUIGAIJUDGE