[2022] KEHC 16033 (KLR)

Lumumba v Republic (Criminal Revision 133 of 2022) [2022] KEHC 16033 (KLR) (Crim) (1 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16033 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Revision 133 of 2022

JM Bwonwong'a, J

December 1, 2022

Between

Brightone Austine Lumumba

Applicant

and

Republic

Respondent

(Being an application for revision of the sentence imposed by Hon. M.A Nazushi (P.M) delivered on 5th July 2022 in Milimani Chief Magistrates Court Criminal Case No. 922 of 2019)

Ruling

1. The applicant was charged and convicted of the offence of stealing a motor vehicle contrary to section 278 of the Penal Code (Cap 63), Laws of Kenya. He was sentenced to 2 years imprisonment. He has now approached this court by way of an application seeking revision of his sentence.The grounds raised are set out in his application.

2. Additionally, he has sworn an affidavit whose major averments are as follows. He is the sole breadwinner in a family of one unemployed wife and three children. He is also the sole breadwinner and cares for his sick and aging mother. He has learnt his lesson and will never again engage in criminal activity. He has urged the court to review his sentence and impose a non-custodial sentence. He has also urged the court to consider the time spent in remand before he was released on bond.

Applicant’s oral submissions 3. The applicant submitted that the provisions of section 333 (2) of the Criminal Procedure Code(Cap 75) Laws of Kenya were never considered by the trial court as the court failed to consider the time spent in pre-trial custody before he was released on bail/bond.

Issues for determination. 4. The submissions of Ms Chege for the respondent left the matter to the court to decide. Having considered the appeal and the applicable law, the issue for determination is whether the applicant meets the threshold for grant of the revisionary orders sought.

Analysis and determination.** 5. Section 333(2) of the Criminal Procedure Code (Cap 75) Laws of Kenya 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.'It is clear from the above proviso that the law requires courts while sentencing to take into account the period the accused spent in custody. The Judiciary Sentencing Policy Guidelines also state that:'7. 10: 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.11. 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.12. An offender convicted of a misdemeanour and had been in custody through-out the trial for a period equal to or exceeding the maximum term of imprisonment provided for that offence, should be discharged absolutely, under section 35 (1) of the Penal Code.'

6. The requirement to comply with section 333(2) CPC is mandatory in the computation of the sentence to be served by the convict upon sentencing. The requirement is also amplified by the Judiciary Sentencing Policy and thus an integral part of the sentencing process to avoid excessive punishment that is not proportional to the offence committed and sentence that is lawfully prescribed.

7. The Court of Appeal has also pronounced itself with respect of the foregoing provisions in the case of Bethwel Wilson Kibor vs Republic [2009] e-KLR, where the court observed that:'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.'

8. In the instant application, as per the original record, the applicant was arrested on May 28, 2019. He took plea on June 3, 2019 and his bail was approved on April 15, 2020 when he was released. He was in custody for 11 months and 24 days in pre-trial custody.

9. I have perused the sentencing notes before the trial court. I note that during the sentencing, the trial court considered his mitigation and noted that he was a first offender. The court then proceeded to sentence him to 2 years imprisonment. There was no indication from the court that the 11 months spent in pre-trial custody were considered.

10. I find that this application is merited and the applicant will continue to serve his sentence which should be less by 11 months and should run from the date of his conviction.

Ruling signed, dated and delivered in open court at Nairobi this December 1, 2022. J M BWONWONG’AJUDGEIn the presence of:Mr. Kinyua, Court AssistantMr. Kiragu for the Republic/RespondentMr. Omondi for the accused/applicants