[2023] KEHC 25045 (KLR)

Kogo v Republic (Miscellaneous Criminal Case E043 of 2022) [2023] KEHC 25045 (KLR) (10 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25045 (KLR)

Republic of Kenya

In the High Court at Eldoret

Miscellaneous Criminal Case E043 of 2022

JRA Wananda, J

November 10, 2023

Between

Timothy Kiprono Kogo

Applicant

and

Republic

Respondent

Ruling

1. The Applicant was charged with the offence of murder contrary to Section 203 as read with section 204 of the Penal Code in Eldoret High Court Criminal Case No 8 of 2020. Subsequently, he entered into a Plea Bargain Agreement and pleaded guilty to the lesser offence of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code. The Court (Mativo J (as he then was)) then on 3/12/2020 convicted him of the offence of manslaughter and sentenced him to serve 7 years imprisonment.

2. Now before this Court for determination is the Application brought by way of the Notice of Motion dated 30/03/2023 expressed to be brought under Section 333(2) of the Criminal Procedure Code. By the same, the Applicant seeks the following Orders:a.…………… [Spent]b.That this Honourable Court be pleased to find that the period spent in remand during the pre-trial period in the lower Court being one (1) year be computed and reduced from the current sentence in interest of justice and as a right by dint of Section 333(2) of the Criminal Procedure Code, Cap 75.

3. The Grounds of the Application are as set out in the body thereof and the same is supported by the Affidavit sworn by the Applicant, Timothy Kiprono Kogo on 30/5/2022.

4. In the Affidavit, the Applicant deponed that by dint of Section 333(2) of the Criminal Procedure Code, the period spent by him in custody ought to be taken into account as a matter of right in computing the sentence that is imposed, the objectives of imprisonment which includes retribution, communication of the community’s condemnation, denunciation of criminal conduct and reformation of the offender have been achieved.

Hearing of the Application 5. The Applicant filed his written Submissions on 11/07/2023. When the matter came up in Court on the same date, Prosecution Counsel, Ms. Emma Okok opted to submit orally. When granted the opportunity, she basically confirmed the matters deponed by the Applicant as correct and therefore supported the Application.

Applicant’s Submissions 6. In his Submissions, the Applicant stated that he is not opposing the sentence or charge, he is only requesting the Court to consider the period he spent in remand in computing his sentence (from date of arrest). He added that prison life has taught him a lot and even how to co-exist with his fellow citizens harmoniously while outside prison.

Respondent’s Submissions 7. In her oral Submissions, Ms Okok conceded that the period spent by the Applicant in custody ought to have been considered prior to his sentencing. She submitted that the Applicant was charged with murder, he took plea on 21/1/2020 and he later entered into a Plea Bargain Agreement upon which the charge was reduced to manslaughter, he pleaded guilty on 3/12/2020 and was sentenced to 7 years imprisonment. She confirmed that it is indeed true that the Court did not consider the period that the Applicant spent in custody and which was from 21/1/2020 to 3/12/2020.

Analysis & Determination 8. The issue that arises for determination is “whether the Applicant’s sentence should be reviewed and the time that he spent in custody before being sentenced be factored under Section 333(2) of the Criminal Procedure Code”.

9. Section 333(2) of the Criminal Procedure Code provides as follows:“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 subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.”

10. A reading of the said provisions reveals that at the time of sentencing, the Court is required to take into account the period a convict has spent in custody. Further, the Judiciary Sentencing Guidelines provide as follows;“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 trial. 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.”

11. Section 333(2) was the subject of the decision in Ahamad Abolfathi Mohammed & another v Republic [2018] eKLR where the Court of Appeal held as follows:“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. ”

12. The same Court in Bethwel Wilson Kibor v Republic [2009] eKLR expressed itself as follows:“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.”

13. The date when the Applicant was arrested is not clear from the record. However, Prosecution Counsel Ms. Okok confirmed that indeed, the Applicant was in remand from 21/1/2020 when he was first arraigned in Court and that he remained in custody until 3/12/2020 when, pursuant to a Plea Bargain Agreement, he pleaded guilty to the lesser offence of manslaughter and was convicted and sentenced. From my computation therefore, the Applicant had already spent 10 months and about 12 days in remand custody before the sentencing. I have perused the record and have noted that the Court did not indicate whether it had taken into account this time spent by the Applicant in custody. It would therefore be a miscarriage of justice if I do not factor the said period as it is an express requirement of the law.

Final Orders 14. In the premises, I allow the Applicant’s Notice of Motion dated 30/05/2022 and order as follows:i.In respect to the sentence imposed in the Judgment delivered in Eldoret High Court Criminal Case No 8 of 2020, the 7 years prison sentence shall be computed as from the date when the Applicant was first arraigned in Court, namely, 21/01/2020. ii.Consequently, the period between 21/01/2020 and the date when the Applicant was sentenced, namely, 3/12/2020 shall be factored in computation of the 7 years prison sentence.

DELIVERED, DATED AND SIGNED AT ELDORET THIS 10TH DAY OF NOVEMBER 2023. …………………WANANDA J. R. ANUROJUDGE