[2022] KEHC 14012 (KLR)

Musau v Republic (Criminal Miscellaneous Application E067 of 2021) [2022] KEHC 14012 (KLR) (13 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14012 (KLR)

Republic of Kenya

In the High Court at Machakos

Criminal Miscellaneous Application E067 of 2021

MW Muigai, J

October 13, 2022

In the matter pursuant to section 137(1), 333(2) and 365 of the criminal procedure code cap.75 Laws of Kenya & all enabling Articles, Sections of the law

Between

Harrison Kilonzo Musau

Applicant

and

Republic

Respondent

Ruling

Background 1. The applicant was charged with the offence of grievous harm contrary to section 234 of the Penal Code before the Magistrate’s Court at Machakos in Criminal Case no 399 of 2019.

2. The particulars of the offence being that on June 2, 2019 at Utooni Village in Machakos Sub County within Machakos County unlawfully did grievous harm to Dennis Mutuku Kilonzo by cutting him on the left hand using a panga.

Trial court’s judgment 3. On December 4, 2019, the Senior Principal Magistrate, Hon C A Ocharo found the applicant guilty of the offence and convicted the applicant pursuant to the provision of section 215 of the Criminal Procedure Code.

Sentence 4. Upon considering the applicant’s mitigation on the even date, the trial magistrate sentenced the applicant to five (5) years imprisonment.

Application 5. The applicant filed a Notice of Motion before this court on October 27, 2021 wherein the applicant seeks orders that pursuant to section 333(2) of the Criminal procedure Code (CPC), this court to consider the period he spent in remand prison while awaiting the final determination of the case since the trial magistrate did not take into account the period.

6. The applicant has pleaded with the court to review the sentence downward while invoking the principle of natural justice. He has pleaded with this court to take into consideration that he was a first offender at the time he was convicted and sentenced by the trial court.

Applicant’s submissions 7. The applicant has submitted that he was arrested on June 17, 2019 and taken to Machakos police station and later after two days he was presented before the trial court where the charges were read to him and he continued to be in the prison custody.

8. According to the applicant, the trial magistrate sentenced him without indicating the date when the sentence should have commenced hence the prisons interpreted that the imprisonment started from the date the sentence was read in court.

Respondent’s submissions 9. On behalf of the respondent, Mr Martin Mwongera, senior prosecution counsel submitted that the 5 months 1 day (154 days) period spent by the applicant in remand prisons should be factored in his sentence.

Determination 10. I have considered the application together with the supporting affidavit, oral and written submissions.

11. It is trite that sentencing is a discretion of the trial court as held in Bernard Kimani Gacheru vs Republic [2002] eKLR.

12. However, under article 165(6) of the Constitution,2010(CoK) provides that:“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.”

13. Section 362 of theCriminal Procedure Code(CPC) is clear on the scope of revision in criminal trial as follows:-“The High Court may call for and examine the record of any Criminal proceedings before any subordinate court for the purposes 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.”

The period spent in custody 14. Section 333(2) of the CPC provides that:“(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.”

15. The Court of Appeal in Ahamad Abolfathi Mohammed & Another vs. Republic[2018]eKLR held that:-“..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…”

16. The learned justices of the Supreme court of Uganda in the case of Bukenya v Uganda (Criminal Appeal no 17 of 2010) [2012] UGSC 3 (29 January 2013) stated that;“Taking the remand period into account is clearly a mandatory requirement. As observed above, this court has on many occasions construed this clause to mean in effect that the period which an accused person spends in lawful custody before completion of the trial, should be taken into account specifically along with other relevant factors before the court pronounces the term to be served. The three decisions which we have just cited are among many similar decisions of this court in which we have emphasized the need to apply Clause (8). It does not mean that taking the remand period into account should be done mathematically such as subtracting that period from the sentence the court would give. But it must be considered and that consideration must be noted in the judgement.”

17. In The Judiciary Sentencing Policy Guidelines at paragraphs 7. 10 and 7. 11, it is stated that:“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.”

18. The trial magistrate pronounced the sentence as follows;Court: Mitigation considered. Accused sentenced to five years imprisonment.

19. The charge sheet shows that the applicant was arrested on June 17, 2019 and arraigned in court on July 3,2019 and not two days later as submitted by the applicant. According to the trial court proceedings, the applicant remained in custody until he was sentenced on December 4, 2019 despite being granted a bond of kshs 30,000/-. The period therefore spent in custody is 5 months 17 days and not 5 months 1 day as submitted by the Prosecution.

20. The trial court proceedings established that the period spent in remand prison was not taken into account by the trial magistrate pursuant to section 333(2) of the CPC.

Whether to review the sentence downwards 21. Section 234 of the Penal Code provides:-Any person who unlawfully does grievous harm to another is guilty of a felony and is liable to imprisonment for life

22. The court notes that the trial magistrate meted less period of sentences as opposed to the stipulated maximum sentence.

23. Sentencing is a discretion of the trial court and is not to be interfered with unless it is illegal, irregular or is manifestly excessive as held by court of Appeal in Ogolla s/o Owuor vs Republic [1954] EACA 270. See Kenneth Kimani Kamunyu vs (2006) eKLR on the proposition that an appellate court can only interfere with the sentence if it is illegal or unlawful. The court finds no illegality, irregularity or excessiveness in the sentences imposed by the trial magistrate.

Dispositiona.Pursuant to section 333(2) of the Criminal Procedure Code, the 5 year imprisonment sentence will be computed to take into account the 5 months and 17 days and to run from June 17, 2019 the date of the arrest.It is so ordered

DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 13TH DAY OF OCTOBER, 2022. M W MUIGAIJUDGE