[2022] KEHC 84 (KLR)

Maina v Republic (Miscellaneous Criminal Application E054 of 2021) [2022] KEHC 84 (KLR) (7 February 2022) (Ruling)

Neutral citation: [2022] KEHC 84 (KLR)

Republic of Kenya

In the High Court at Machakos

Miscellaneous Criminal Application E054 of 2021

MW Muigai, J

February 7, 2022

Between

Paul Gichuhi Maina

Applicant

and

Republic

Respondent

Ruling

1. The Applicant Paul Gichuhi Maina was charged with three Counts at Kangundo SPM Court in Criminal Case No. E099 of 2020 (subject of this application).Count 1: Breaking into a Building with intent to commit a felony contrary to Section 307 of the Penal Code.Count II: Stealing contrary to Section 270 (b) of the Penal CodeCOUNT III: Malicious damage to property Contrary to section 339 (1) of the Penal Code.

2. On 20/04/2021 the Applicant herein before Trial Court changed his plea and admitted to the facts read in Kiswahili as outlined in the charge-sheet. The Applicant was convicted on his own plea of guilty and after mitigation that he was remorseful he was fined Kshs. 10,000/- in default to serve six (6) Months imprisonment for each Count and the sentences to run consecutively.

3. Aggrieved by the sentence the Applicant/Appellant prays;1. That this Court invokes Section 333(2) of the Criminal Procedure Code.

2. That this Court grants order for the 18 months sentence to commence form the date of arrest 19/10/2020.

3. That this Court reduces the sentence to time served.

SubmissionsApplicant/ Appellant Submissions 4. The Applicant cited the case of Ahamad Abolfathi Mohammed & Another –vs- Republic [2018] eKLR; Court of Appeal stated;“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 provisions provides 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 on which it was pronounced, except where otherwise provided in this Code.Provided that where the person sentenced under subsection1. has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.”

5. The Appellant has been in custody from the date of his arrest on 19th June 2020. By dint of section 333(2) of the Criminal Procedure Code, the Trial Court was obliged to take into account the period that he had spent in custody before he was sentenced. Although the Learned Judge stated that he had taken into account the period the Appellant had been in custody, he ordered that his sentence shall take effect from the date of his conviction by the Trial Court.

Respondent’s Written Submissions: 6. In Bernard Kimani Gacheru –vs- Republic [2002] eKLR the Court of Appeal on its part restated that:-“It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the Trial Court. Similarly, sentence must depend on the facts of each case. On appeal, the Appellate Court will not easily interfere with sentence unless, that the trial overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless anyone of the matter already states is shown to exist.”

7. In Evan Kalo –vs- Republic (2020) eKLRWakiaga J stated thus“It is therefore clear that those powers are limited to what the statute and the Constitution of Kenya under Article 165 (6) and (7) provides. What this Court is called upon to determine is the legality, correctness or propriety of the sentence given by the Court on the Applicant’s application or petition for resentencing. In order to exercise that power, the Court must be satisfied that the Trial Court acted upon wrong principles or failed to consider some fundamental principles.”

Determination 8. After consideration of pleadings and submissions, the issue for determination is whether the Court may invoke Section 322 of Criminal Procedure Code to reduce the Applicant’s sentence and to the time served todate.Section 37 Penal Code provides;Sentences when cumulative;Where a person after conviction for an offence is convicted of another offence, either before sentence is passed upon him under the first conviction or before the expiration of that sentence, any sentence, other than a sentence of death, which is passed upon him under the subsequent conviction shall be executed after the expiration of the former sentence, unless the court directs that it shall be executed concurrently with the former sentence or any part thereof:Provided that it shall not be lawful for a court to direct that a sentence of imprisonment in default of payment of a fine shall be executed concurrently with a former sentence under subparagraph (i) of paragraph (c) of subsection (1) of section 28 or of any part thereof.Section 14 Criminal Procedure Code provides;Sentences in cases of conviction of several offences at one trial(1)Subject to subsection (3),when a person is convicted at one trial of two or more distinct offences, the court may sentence him, for those offences, to the several punishments prescribed therefore which the court is competent to impose; and those punishments when consisting of imprisonment shall commence the one after the expiration of the other in the order the court may direct, unless the court directs that the punishments shall run concurrently.(2)In the case of consecutive sentences, it shall not be necessary for the court, by reason only of the aggregate punishment for the several offences being in excess of the punishment which it is competent to impose on conviction of a single offence, to send the offender for trial before a higher court.

9. The Applicant was sentenced to consecutive sentences of 6 months each Count in default of payment of 10,000/- for each count. For the 3 Counts; namely; breaking into a building, stealing and malicious damage cumulatively he was/is serving 18 months imprisonment. The sentences cannot be rendered to run concurrently as each sentence was/is with regard to each Count, each sentence had/has an option of payment of fine and the Trial Court did not prescribe concurrent sentences.

10. The Applicant changed his plea of not guilty to guilty and admitted the charges and facts read out to him in Kiswahili. Therefore, he is not eligible to appeal against conviction on his own plea of guilty but only on sentence. The instant Miscellaneous Application is to have the computation of 18 months imprisonment to commence from the date of remand to date and if served, the Applicant to be released from prison.

11. This Court associates itself with the holding by the High Court by G. V. Odunga J in Vincent Sila Jona & 87 Others vs Kenya Prison Service & 2 Others [2021] eKLRwho held as follows;“A declaration that Trial Courts are enjoined by Section 333(2) of the Criminal Procedure Code, in imposing sentences, other than sentence of death to take into account of the period spent in custody.A declaration that those who were sentenced in violation of the said section are entitled to have their sentences reviewed by the High Court in order to determine their appropriate sentences.A declaration that Section 333(2) CPC applies to the original sentence as well as sentence imposed during resentencing……….”

12. The requirement to comply with Section 333(2) CPC is mandatory in computation of the sentence to be served by the Trial Court’s upon sentencing. The requirement is also amplified by the Judiciary Sentencing Policy which provides;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.and thus an integral part of sentencing process to avoid excessive punishment that is not proportional to the offence committed and sentence lawfully prescribed and contrary to Article 29 (a) Constitution of Kenya 2010. See also; Bethwel Wilson Kibor vs Republic [2009] eKLR Where the Appellant was convicted and sentenced and had been in custody for 10 years and 1 month which ought to have been taken into account in assessing sentence.

13. The Applicant deposed/alleged that he was arrested and remanded on 19th October 2020 and he remained in custody upto the date of conviction on 20th April 2021. In the instant case, as per the original Court record, the Applicant, the Information/Charge Sheet, the date of apprehension and report to Court was on 2nd November 2020 and thereafter, he remained in custody despite being granted Cash Bail of Ksh 50,000/-. The Applicant changed plea of not guilty to guilty on 20th April 2021when the charges were read out in Kiswahili and according to the record, he admitted the charges and particulars of the offences. After, plea of guilty was entered on his own plea of guilty, he was allowed to mitigate and he stated he was misled by peers and was a 1st Offender.

14. In compliance with Section 333(2) Criminal Procedure Code, and as per charge sheet/information the Applicant was in custody since 2/11/2020, computation of the consecutive sentence of 18 months cumulative of the 3 Counts; 6 months each began to run from November 2020- December 2020 = 2 monthsJanuary 2021- December 2021= 12monthsJanuary 2022- April 2022 = 4 months

15. Whereas the sentencing process and outcome is within the purview of the Trial Court and depends on the circumstances of each case, where mandatory provisions of law has not been complied with, this Court shall intervene in exercise of revision under supervisory jurisdiction of the High Court as provided for under Article 165 (3) CoK 2010 as follows;

16. In Compliance with Section 333(2) Criminal Procedure Code, and taking into account the period he has been in custody the Applicant ought to be released from prison/custody in April 2022 and/or earlier taking into account the exercise of Section 46(2) Kenya Prisons Actof remission by Prison Authorities after calculating and/or including remission of sentence and subject to the conduct of the Accused person while in prison.

Disposition1. The Applicant’s Miscellaneous Application is granted as follows;

2. Section 333(2) CPC application mandates the assessment/computation of 18 months imprisonment being served by the Applicant shall commence from November 2020 to April 2022 and maybe subject to remission under Section 46(2) Prisons Act.

3. The Application is allowed and the sentence served for the period outlined above and thereafter the Applicant maybe accordingly be set free by April 2022 unless otherwise lawfully held.DELIVERED SIGNED & DATED IN OPEN COURT ON 7THFEBRUARY 2022 (VIRTUAL CONFERENCE).M.W. MUIGAIJUDGEIN THE PRESENCE OF:PAUL GICHUHI MAINA - THE APPLICANT- PRESENT ONLINEMR. MWONGERA - FOR THE RESPONDENTGEOFFREY - COURT ASSISTANT