[2022] KEHC 2990 (KLR)

Kitaba v Republic (Petition E004 of 2021) [2022] KEHC 2990 (KLR) (18 May 2022) (Ruling)

Neutral citation: [2022] KEHC 2990 (KLR)

Republic of Kenya

In the High Court at Marsabit

Petition E004 of 2021

JN Njagi, J

May 18, 2022

Between

Kulula Kitaba

Petitioner

and

Republic

Respondent

Ruling

1. The petitioner herein was on the June 20, 2016 sentenced to serve 18 years imprisonment for the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The petitioner has now approached this court with a petition dated July 19, 2021 complaining of contravention of his fundamental rights under Article 27(1) of the Constitution of Kenya 2010 in that the trial court when sentencing him failed to take into account the period he had spent in custody during trial as required by section 333(2) of the Criminal Procedure Code (CPC). The petitioner contends that failure to do so amounts to unfair discrimination of the law. He prays for an order that the sentence of 18 years imprisonment commences from the date of his arrest.

2. The petition proceeded by way of written submissions. The petitioner submitted that he was sentenced on the 20th June 2019. That the trial court failed to order that the sentence of 18 years imprisonment commences from the date of arrest which is July 27, 2017. That the judge did not consider the time spent in custody which was a violation of his right to equal protection and equal benefit of the law as enshrined under Articles 23, 27(1), (2), (4) and (6) of the constitution. That failure to comply with section 333(2) of the CPC will result to him serving an excessive sentence.The petitioner submitted that sentence should be deemed to start when liberty is lost. He relied on the case of Ahamad Abolfathi Mohammed & another v Republic [2018] eKLR where 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. That provision provides as follows:“333(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.”

3. The appellants have been in custody from the date of their arrest on June 19, 2012. 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(s) of the Criminal Procedure Codewas 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 June 19, 2012.

4. Consequently, the petitioner submitted that sentence should run from the date of arrest or when liberty was lost.The appellant also cited the case of Bethwel Wilson Kibor v Republic [2009] eKLR where the same court held thus:By proviso to section 333(2) of Criminal Procedure Code where a person sentenced has been held in custody prior to such sentence, the sentence shall take 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 ten 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.

5. The state opposed the petition through the written submissions of the Senior Principal Prosecution Counsel, Mr.W. Ochieng. He submitted that though section 333(1) of the CPC places the discretion of taking into account the period already spent in custody before sentencing to the court, it does not expressly mean that the period that the applicant was in custody before trial be substracted from the final sentence after conviction. That taking into account means taking into consideration which can be done in many ways including reducing the applicable sentence drastically in consideration of the period within which the applicant was already in custody.

6. Counsel submitted that the applicant was slapped with a lenient sentence of 18 years for a heinous offence which deserved a sentence of life imprisonment. That in reaching that sentence the trial court took into account the period already served.

7. I have considered the grounds in support of the petition and the grounds in opposition thereto. Section 333(2) of the CPC is clear that a sentencing court is obligated to take into account the period spent in custody whenever sentencing an accused person who has been in custody. In this case Justice Chitembwe made the following remarks when sentencing the petitioner:I do note that the accused has been in custody since October 2017. This is a period of 1 -1/2 years. Given the circumstances of the case and taking into account the period the accused has already served in remand prison, I do sentence the accused to serve eighteen years imprisonment.

8. It is clear from the sentencing remarks of the learned Judge that before he sentenced the appellant to 18 months imprisonment he took into consideration that appellant was in remand prison for a period of one-and-a-half months. There is then no doubt that the period spent in remand prison was taken into account whereby the sentence was reduced to accommodate the period spent in custody. It is clear from the remarks of the Judge that if the period was not taken into account the appellant would have been sentenced to a period of more than 18 years imprisonment. I agree with the submission by Mr. Ochieng that one way of taking into account the time spent in custody is reducing the sentence in view of the time spent in custody. This is what the learned Judge did in the case. I do not find any fault in that that procedure. There is thereby no substance in the argument by the appellant that the sentencing court did not take into account the period spent in custody.

9. The upshot is that the petition lacks merit and is dismissed accordingly.

DELIVERED, DATED AND SIGNED AT MARSABIT THIS 18THDAY OF MAY 2021. J. N. NJAGIJUDGEIn the presence of:Mr. Ochieng for RespondentAppellant present in personCourt Assistant- Peter14 days R/A.