[2020] KEHC 1239 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MISC. CRIMINAL APPLICATION CASE NO. 15 OF 2020

LESIIT, J

MOHAMED SALIM....................APPELLANT

VERSUS

REPUBLIC..............................RESPONDENT

JUDGMENT

1. The Appellants in this file were two JABAREEN AHMED, 1st Appellant and MOHAMED SALIM, 2nd Appellant (herein after the Appellant). However, when the matter came up for hearing, JABAREEN AHMED withdrew his application, leaving the only Appellant as MOHAMED SALIM.

2. The court directed Mr. C. Mwita for the Appellant to file a Petition of Appeal to accompany the Chamber Summons application filed by the Appellants in person on 23rd January 2020.

3. The Petition and Grounds of Appeal are on record, dated 16th November 2020. Two grounds are raised as follows:

(1) That the Learned Magistrate erred in both fact and in Law in stating that the Appellant has been in custody from January, 2016 in commuting the time from when the sentence was to commence in line with section 333(2) of the Criminal Procedure Code.

(2) That the Learned Magistrate erred in law and far, for not stating the correct date from when the Appellant was first arrested (which is the 25th February, 2014). This has led to an erroneous computation on the start and finish day and dates.

4. The Appellant seeks three orders which summarized are:

(i) That the Appellant’s conviction and sentencing is and was justified, which is not been questioned by the Appellant.

(ii) That the spirit of section 333(2) of the Criminal Procedure Code and intention of Hon Andayi, Chief Magistrate is for the sentence to run from the date of the Appellant’s arrest.

(iii) That objectives of sentencing have been achieved this far at the rate of 90%.

(iv) That the appeal be allowed in regard to the commencement date of the sentence as prayed.

5. The learned Prosecution Counsel Mr. Duncan Ondimu filed a Notice of Enhancement of Sentence under section 354(3)(b) of the Criminal Procedure Code. That section provides:

“354(3) The court may then, if it considers that there is no sufficient ground for interfering, dismiss the appeal or may –

(b) In an appeal against sentence, increase or reduce the sentence or alter the nature of the sentence.”

6. Mr. Chacha Mwita relied on his written submissions which I have considered. Counsel urged that the Appellant was contend with the sentence but were urging the court to re-sentence him in line with the provisions of section 333(2) of the Criminal Procedure Code. Mr. Mwita urged that the learned trial magistrate made a mistake when he found that the Appellant has been in custody from January, 2016 in commuting the time from when the sentence was to commence in line with section 333(2) of the Criminal Procedure Code. He urged that the learned Magistrate erred in law and fact, for not stating the correct date from when the Appellant was first arrested, which is the 25th February, 2014. He urged the court t release the Appellant as he has already served, and further that it will save taxpayers’ money. For that proposition counsel cited a Kenyan case, Oluseye Oledaji Shittu Vs Republic [2017] eKLR where the court held:

“He is not able to pay the fine and his continued stay in the country is an extra expense on the taxpayers’ money. And since he will, in the end, be repatriated, the best option is to find that he has served sufficient sentence. I do however note that the sentence was legal.”

7. Mr. Ondimu relied on the Grounds of Opposition dated 19th October, 2020. In brief the state urged that the trial court took into consideration the period spent in remand and that therefore the application was misconceived. In his written submissions he relied on a Ugandan case which I have considered. On the Notice of Enhancement which he filed and served the Appellant’s counsel learned Prosecution Counsel sought an enhancement of sentence arguing that the learned trial magistrate gave light sentences for offences which called for a maximum sentence of 30 years.

8. Mr. Mwita for the Appellant urged that the enhancement does not lie as the Appellant was happy with the sentence imposed on him, and was not challenging it, but was challenging the computation of it.

9. I have considered the Appeal, and the grounds of it. The learned Appellant’s counsel urges that the learned trial magistrate erred when he found that the Appellant w

10. Section 333(2) of the Criminal Procedure Courtprovides:

“333 (2) 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.”

11. The operative words here are the sentence shall take account of the period spent in custody.It is clear that the law requires courts to take into account the period the convict spent in custody. The Appellant’s counsel urges that the period to be considered should be from the arrest of the Appellant, not his remand in custody. Mr. Ondimu relied on a Ugandan case which cited another Ugandan case, Kizito Senkula vs. Uganda Criminal Appeal No. 24 of 2001 (UR). The Court held that:

“Taking into account does not mean an arithmetical exercise.”

12. I read the ruling on sentence by the trial court and noted the following observation:

“The accused persons have been in custody since January 2016 counting it same (sic) two years and four months in custody. Under section 333(2) of the Criminal Procedure Code, I am required to take this period for account. This position is reiterated in the sentencing Policy Guidelines at page 20. ”

13. The law requires that the court takes into account the period a person has been held in custody before the sentence. That period should be the time the accused person was in custody during the pendency of the trail. It cannot be the period of time when he was held under investigations. That period is outside the trial period. I do not believe that the drafters of this law would have intended for the court to look outside of the period before it to find out what happened before the accused person was arraigned in court. Secondly, it is sufficient for the court to note on record that it has considered or taken account of the incarceration during the pendency of the trial. That Taking into account cannot be an arithmetic or mathematical exercise.

14. As for the State, if it intended to appeal against the sentence, it should have filed a counter-appeal in order to ventilate its issues. In any event, the Appellant was not challenging the exercise of discretion in passing sentence, but the computation of the time the Appellant was in custody by the trial court before sentence.

15. Having come to the conclusions I have in this matter, I find no merit in the Appellant’s arguments’. As for the Respondent, he ought to have filed a counter-appeal. In the result both pleas are dismissed.

DATED ANE DELIVERED THROUGH TEAMS AT NAIROBI 3rd DAY OF DECEMBER 2020

LESIIT, J.

JUDGE

In the presence of:

Kinyua CA