[2023] KEHC 25137 (KLR)

Mayabi v Republic (Miscellaneous Criminal Case E010 of 2022) [2023] KEHC 25137 (KLR) (10 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25137 (KLR)

Republic of Kenya

In the High Court at Eldoret

Miscellaneous Criminal Case E010 of 2022

JRA Wananda, J

November 10, 2023

Between

Lazarus Masika Mayabi

Petitioner

and

Republic

Respondent

Ruling

1. The Applicant was charged in Eldoret High Court Criminal Case No. 32 of 2020 with the offence of murder contrary to Section 203 as read with section 204 of the Penal Code. In the Judgment of H. Omondi J (as she then was) dated 28/12/2021 and delivered on her behalf on 10/02/2022 by Nyakundi J, the Court held that the facts presented did not disclose the offence of murder but proved that of manslaughter and for which she duly convicted the Petitioner. Subsequently, on 11/05/2022, after mitigation, Nyakundi J sentenced the Petitioner to a prison sentence of 6 years.

2. Now before this Court for determination is the Application by way of the Notice of Motion dated 3/08/2022 and brought basically under section 333(2) of the Criminal Procedure Code. Quoted verbatim, the prayers sought by the Petitioner are as follows:a.That, may the Honourable Court allow my sentence to start from June 1, 2020, the date when I was arrested.b.That the Petition is seeking enforcement of section 333(2) of the Criminal Procedure Code in relation to sentences that have not factored the time spent in custody.c.[…………] Spent

3. The grounds of the application are as set out in the body thereof and the same is supported by the applicant’s affidavit.

4. In the affidavit, the applicant deponed that the sentence meted upon him runs from the date of conviction and he is now praying for the period spent in custody to be factored as part of the sentence as prescribed under section 333(2) of the Criminal Procedure Code, he is remorseful, repentant, reformed and rehabilitated, he has learnt lessons while in custody, and that during his time in prison he has gone through various theological and social programmes.

Hearing of the Application 5. The applicant filed his written submissions on 4/01/2023. When the matter came up in court on the same date, Prosecution Counsel, Ms. Emma Okok opted to submit orally.

Applicant’s Submissions 6. In his written submissions, the applicant stated that this court has unlimited jurisdiction to grant the prayers sought. He then basically expounded on the matters already set out in his supporting affidavit, particularly, on section 333(2) of the Criminal Procedure aforesaid. When given the opportunity to add any point orally, he reiterated the above matters.

Respondent’s Submissions 7. In her oral Submissions, Ms Okok submitted that the Petitioner was arraigned on 11/06//2020, he took plea on 19/06/2020, he was admitted to bond on 29/07/2020 and he was then released on cash bail on 30/09/2020. She therefore stated that the Petitioner was in custody from 11/06/2020 to 30/09/2020, a period of about 3 months and a few weeks. She added that the Petitioner was sentenced on 11/05/2022 and agreed that the period the Appellant spent in custody was not taken into account. She therefore conceded to the Petition and agreed that Judgment was read on 10/2/2022 and sentence on 11/05/2022 and that the computation was from the date of conviction, not sentence.

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 theCriminal 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 provision reveals that at the time of sentencing, the court is required to take into account the period a convict has already 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 vs 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 Applicant prays that the 6 years sentence be computed from the date when he was arrested and which he states to be 1/06/2020. The record does not however clearly confirm this date. I have perused the record and agree with Ms Okok that the Petitioner was arraigned on 11/06//2020, he took plea on 19/06/2020, he was admitted to bond on 29/07/2020 and he was eventually released on cash bail on 30/09/2020. It is therefore true that the time that the Appellant spent in custody was from 11/06/2020 to 30/09/2020, about 3 months and 2 weeks. There is no indication that this period was taken into account.

14. Although sentence was read out on 11/05/2022, the computation was from the date of conviction, which was on 10/02/2022. No additional period spent in custody was therefore omitted.

15. As aforesaid, there is however no indication that the court took into account the period of 3 months and about 2 weeks spent by the applicant in custody before conviction. It would therefore be a miscarriage of justice were this court to ignore the same since it is an express requirement of the law.

Final Orders 16. In the premises, I allow the applicant’s notice of motion dated 3/08/2022 and order as follows:i.In respect to the 6 years prison sentence imposed in the Judgment delivered in Eldoret High Court Criminal Case No. 32 of 2020, the same shall be computed less the period spent in custody by the Applicant, prior to conviction.ii.For avoidance of doubt, such period to be deducted is from 11/06/2020 (date of arraignment) to 30/09/2020 (date of release on cash bail).

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