[2024] KEHC 16074 (KLR)

Muchira v Republic (Miscellaneous Criminal Application E041 of 2024) [2024] KEHC 16074 (KLR) (18 December 2024) (Ruling)

Neutral citation: [2024] KEHC 16074 (KLR)

Republic of Kenya

In the High Court at Nyamira

Miscellaneous Criminal Application E041 of 2024

WA Okwany, J

December 18, 2024

Between

Job Muchira

Applicant

and

The Republic

Respondent

(Being a Revision against the Sentence at the Chief Magistrate’s Court in Nyamira in the CMCCR (SO) No. E070 of 2022 by Hon. B.O. Okong’o, Resident Magistrate delivered on the 13th day of May, 2024)

Ruling

1. The Applicant herein filed an Application dated 13th March 2024 seeking Revision of sentence under Section 333 (2) of the Criminal Procedure Code on the following grounds: -1. That he was convicted of the offence of rape and indecent act contrary to Section 3(a) (b) (d) and 11 of the Sexual Offences Act No. 3 and sentenced to 10 years’ imprisonment.2. That he has no pending Appeal in any of the appellate courts and is asking the Court to invoke Section 333 (2) of the CPC and consider the period of 18 months spent in custody before conviction.3. That the Applicant was arrested on 14th November 2022 and convicted on 13th May 2024.

2. The Respondent did not oppose the Application.

3. Article 165 of the Constitution grants the High Court supervisory jurisdiction over subordinate courts. The Article stipulates as follows: -(6)The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.(7)For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.

4. Section 362 of the Criminal Procedure Code provides as follows: -362. Power of High Court to call for recordsThe 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. Section 364 of the Criminal Procedure Code (CPC), on the other hand, outlines the manner in which such powers are to be exercised thus:-364. Powers of High Court on revision(1)In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may—(a)in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358, and may enhance the sentence;(b)in the case of any other order other than an order of acquittal, alter or reverse the order.(2)No order under this section shall be made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by an advocate in his own defence:Provided that this subsection shall not apply to an order made where a subordinate court has failed to pass a sentence which it was required to pass under the written law creating the offence concerned.

6. Section 333 (2) of the Criminal Procedure Code requires the court to factor in and deduct the period that an accused person has spent in remand custody while awaiting his trial during sentencing. The Section provides as follows: -333. Warrant in case of sentence of imprisonment(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.

7. The Judiciary Sentencing Policy Guidelines (2016) provide as follows: -

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.

11. 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. In Bethwel Wilson Kibor vs. Republic [2009] eKLR it was held thus: -“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 22nd September, 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.”

9. A perusal of the trial court’s record reveals that the Applicant first appeared in court for plea taking on 16th November 2022 which was also the date of his arrest. The applicant remained in custody throughout the trial period that ended on 13th May 2024 when he was sentenced. The record does not indicate if the trial court considered the period that the Applicant spent in remand custody while awaiting his trial as required by Section 333 (2) of the CPC.

10. I also note that the trial court sentenced the Applicant on both the main count and the alternative charge contrary to the law. The proper approach should have been to make no finding on the alternative count upon finding him guilty on the main count. I am guided by the decision in Patrick Gitonga vs. Republic [2020] eKLR where it was held thus: -“The conviction and sentence for the alternative charge are patently illegal and must be set aside. Once a court has convicted on the main count, it cannot also convict on the alternative charge! It is alternative to the main count! That conviction and sentence on the alternative count are hereby set aside for illegality.”

11. I find that the conviction of the Applicant on the main count of rape and the alternative count of committing an indecent act with an adult and proceeding to mete out different sentences on each count was akin to subjecting him to double conviction for the same offence. In the final analysis, I find that the Application is merited and I therefore allow it by setting aside the conviction and sentence on the alternative count. I however uphold the sentence on the main count but with a rider that the period that the Applicant spent in remand custody while awaiting his trial be considered when computing his imprisonment term in accordance with Section 333 (2) of the Criminal Procedure Code.

12. Orders accordingly.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NYAMIRA VIA MICROSOFT TEAMS THIS 18THDAY OF DECEMBER 2024. W. A. OKWANYJUDGE