[2023] KEHC 25272 (KLR)

Magona v Republic (Criminal Appeal E045 of 2021) [2023] KEHC 25272 (KLR) (10 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25272 (KLR)

Republic of Kenya

In the High Court at Kiambu

Criminal Appeal E045 of 2021

A Mshila, J

November 10, 2023

Between

James Magona

Appellant

and

Republic

Respondent

Judgment

1. A brief outline of the case was that the Appellant James Magona was charged with the offence of being in possession of Wildlife Trophy c/s 95 of Wildlife Conservation and Management Act, 2013.

2. The Appellant was convicted and was sentenced accordingly to pay a fine of Kshs.1 Million in default to serve a term of five (5) years imprisonment; being aggrieved with trial court’s decision the applicant lodged this Appeal on both conviction and sentence and listed the following grounds of appeal:-1. That the learned trial magistrate erred in matters of law and fact by failing to order that the commencement date for the sentence take note of the time spent in legal custody in contravention of Section 333(2) of the criminal Procedure Code (Cap. 75 Laws of Kenya).2. That by the merits of the Supreme Court decision in Francis Karioko MuruatetuvRepublic (2017) eKLR and the emerging jurisprudence, the 5 years minimum imprisonment is harsh and inappropriate under the circumstances of the case.

3. At the hearing hereof, the petitioner was unrepresented whereas the Respondent was represented by Prosecuting Counsel Mr. Gacharia; Chemenjo and both made oral submissions; hereunder are the parties’ respective submissions;

Appellants’ Case 4. The Appellant seeks to abandon the appeal on conviction and instead seek for revision of sentence under the provisions of Section 333(2) of the Criminal Procedure Code; that the trial court failed to apply the aforesaid section and ought to have backdated the commencement date to the day of his arrest which was 31/05/2019;

5. To support his prayer for revision of the commencement date of the sentence the Appellant relied on the Charge Sheet and the Ruling on Sentence;

6. The Appellant prayed that in balancing mercy and justice his sentence be revised to commence effective from the date of arrest which is said to be on the 31/05/2019;

Respondent’s Case 7. In response counsel confirmed that the sentence was silent on the commencement date; and was not opposed to the prayer for the revision of the date to commence from the date of the Appellants arrest;

Issues for Determination 8. After hearing the rival submissions this court has framed only one issue for determination which is as follows;

9. Whether to consider the initial date of arrest as the commencement date of the sentence;

Analysis Whether to consider the initial date of arrest as the commencement date of the sentence; 10. The Appellant had filed an Appeal on both conviction and sentence; at the hearing thereof he abandoned the appeal on conviction and instead sought a revision of his sentence; he prayed that the provisions of Section 333(2) be invoked and for an order that the sentence imposed to commence from the date of arrest.

11. Upon perusal of the trial courts judgment on sentencing this court indeed notes that it is silent on the aspect of the date of arrest as being the commencement date of the sentence; and indeed the trial court ought to have taken this factor into consideration;

12. The provisions of Section 333(2) of the Criminal Procedure Code reads as follows:-“(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 of which it was pronounced, except where otherwise it is 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”.

13. Based on this provision of the law the Appellant is indeed entitled to the benefits of the provisions of the Section 333(2) aforesaid for the time spent in remand during the trial period;

14. This court will take into consideration the period spent in remand from the date he was arrested to the time of conviction and will avail the benefit of the provisions of Section 333(2) to the Appellant; therefore, commencement of his sentence shall run from the date of his arrest which was the 31/05/2019 as opposed to the date when he was convicted which was on the 19/06/2020;

Findings and Determination 15. For the foregoing reasons this court makes the following findings and determinations;

16. This court finds no good reason to warrant interfering with the sentence as it is found to be legal; and it is upheld.

17. The sentence shall commence from the date of arrest being 31/05/2019 as stated on the Charge Sheet.

Orders accordingly.

DATED, SIGNED AND DELIVERED ELECTRONICALLY AT KIAMBU THIS 10TH DAY OF NOVEMBER, 2023. HON. A. MSHILAJUDGEIn the presence of:-Mourice – Court AssistantAppellant present in personGacharia for State/respondentLanguage Kiswahili