[2023] KEHC 24875 (KLR)

Magige v Republic (Miscellaneous Criminal Application 22 of 2023) [2023] KEHC 24875 (KLR) (7 November 2023) (Ruling)

Neutral citation: [2023] KEHC 24875 (KLR)

Republic of Kenya

In the High Court at Kibera

Miscellaneous Criminal Application 22 of 2023

DR Kavedza, J

November 7, 2023

ARISING FROM CRIMINAL CASE 859 OF 2016

Between

James Kegocha Magige

Appellant

and

Republic

Respondent

Ruling

1. The applicant was charged and convicted for the offences of: stealing a motor vehicle contrary to section 278A as read with section 268 of the Penal Code; making a document without authority contrary to section 357(a) of the Penal Code; and, uttering a false document contrary to section 353 of the Penal Code. He was subsequently sentenced to serve seven (7) years imprisonment for counts I and II, and three (3) years imprisonment for count III.

2. The applicant has now filed an application seeking revision of his sentence. He prays that the court takes into account the period he spent in pre-trial custody and revise his sentence. The application is not opposed by the state.

3. While the application is premised on the provisions of Section 333 (2) of the Criminal Procedure Code, it invokes the revisionary jurisdiction of this court which is donated by section 362 of the Criminal Procedure Code which reads as follows:“…The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.

4. Further, section 333 (2) of the Criminal Procedure Code (Cap 75) Laws of Kenya provides that:“(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.”

5. In Ahmed Abolfathi Mohamed v Republic [2018] eKLR the Court of Appeal held as follows;“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 appellant’s sentence of imprisonment to run from the date of arrest on 19th June 2012. ”

6. The Judiciary Sentencing Policy Guidelines states as follows as regards the section:“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.”

7. Based on the foregoing decision and the existing jurisprudence, I allow the application and direct that the period the applicant spent in custody from 23/2/2016 to 26/8/2019, being 3 years and 6 months, be included in the computation of his sentence. That is to say, that the sentence shall run effective from the date of arraignment, which is 23rd February, 2016.

8. It is so ordered.

RULING DATED AND DELIVERED VIRTUALLY THIS 7TH DAY OF NOVEMBER 2023. ..........................D.KAVEDZAJUDGEIn the presence of:Ms Akunja for the State.Appellant absent (VTC)Joy C/A