[2023] KEHC 26320 (KLR)

Mbogo & 2 others v Republic (Criminal Revision E001 & E002 of 2022 & E002 of 2023 (Consolidated)) [2023] KEHC 26320 (KLR) (8 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26320 (KLR)

Republic of Kenya

In the High Court at Kajiado

Criminal Revision E001 & E002 of 2022 & E002 of 2023 (Consolidated)

DR Kavedza, J

December 8, 2023

Between

Wilson Njeru Mbogo

1st Applicant

Julius Mwai N’thiga

2nd Applicant

Geoffrey Lumeka Sakwa

3rd Applicant

and

Republic

Respondent

Ruling

1. The 3 applicants (as 4th, 3rd and 1st accused respectively in the trial court), together with 2 others not before this court were charged with the offence of Robbery with Violence contrary to section 296 (2) of the Penal Code in Kajiado CM Criminal Case No. 835 of 2019. They were however convicted with the offence of Robbery contrary to section 296 (1) of the Penal Code. The 1st and 3rd applicants were sentenced to five (5) years imprisonment while the 2nd applicant was sentenced to six (6) years imprisonment.

2. The applicants filed separate applications seeking revision of sentence; HCCREV No. E001 of 2022, HCCREV EOO2 of 2022 both dated 5/11/2022, and HCCREV No. E004 of 2023 (undated) respectively. The applicants collectively pray that the court takes into account the period he spent in pre-trial custody and revise their sentence.

3. The applications are supported by an affidavits sworn by the applicants. The applicants aver that they was charged with the offence of robbery with violence on 18/12/2023 and convicted on 26/6/2015 to suffer death. On appeal, the High Court ordered a retrial and they was later convicted to serve 5 years imprisonment for the 1st and 3rd applicants and 6 years imprisonment for the 2nd applicant on 4/1/2022. They averred that they have thus spent nine years in custody and prayed that this court invokes the provisions of section 333(2) of the Criminal Procedure Code and consider the period spent in custody. This application is not opposed by the State.

4. 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.

5. 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.”

6. 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. ”

7. 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.”

8. Based on the foregoing decision and the existing jurisprudence, I allow the application and direct that the period the applicants spent in custody be included in the computation of their sentence. That is to say, that the sentence shall run effective from the date of arrest, which is December 28, 2013.

9. It is so ordered.

RULING DATED AND DELIVERED VIRTUALLY THIS 8TH DAY OF DECEMBER 2023. D.KAVEDZAJUDGEIn the presence of:Nyaroita for StateAppellant PresentMateli C/A