[2022] KEHC 16256 (KLR)

Ndeda v Republic (Miscellaneous Criminal Application 365 of 2019) [2022] KEHC 16256 (KLR) (Crim) (16 November 2022) (Ruling)

Neutral citation: [2022] KEHC 16256 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Miscellaneous Criminal Application 365 of 2019

JM Bwonwong'a, J

November 16, 2022

Between

Silvanous Ndeda

Applicant

and

Republic

Respondent

(Being an application for revision of the sentence imposed by Hon. Kamau (R.M) on 25{{^th}} July 2017 in Kibera Chief Magistrate’s Court in Sexual Offences Case No. 21 of 2014 Republic vs Silvanos Ndeda)

Ruling

1. The applicant was charged with the offence of defilement contrary to section 8 (1) as read with section 8 (2) of the Sexual Offences Act, No 3 of 2006. In the alternative, he was charged with the offence of committing an indecent act with a child contrary to section 11 (1) of the Sexual Offences Act, No 3 of 2006.

2. He pleaded not guilty to both charges, and after a full hearing, he was acquitted on the main charge but was convicted on the alternative charge. He was sentenced to serve ten years imprisonment.

3. He has now approached this court vide a notice of motion seeking a revision of the sentence imposed by the trial court. He has also deponed an affidavit in support of the application.

4. The major averments are as follows. He was in pre-trial remand custody for 3 years and 1-month, which period was not considered by the trial court. He is remorseful for the offence committed. He is a first offender and prays that the court considers a non-custodial sentence as he qualifies for probation.

The applicant’s submissions. 5. During the hearing of the application, the applicant made oral submissions. He urged the court to order that his sentence to run from March 3, 2014, when he was arrested. He argued that the period he spent in pre-trial custody was not considered by the trial court.

The respondent’s submissions 6. In opposition to the application, Mr Kiragu learned prosecution counsel, orally submitted that the period spent in pre-trial custody was considered by the trial court during sentencing. He therefore urged the court to dismiss the application

Issues for determination 7. I have considered the application, the oral submissions, and the applicable law. I find that the issue that arises for determination is whether the order of the lower court warrants revision.

Analysis and determination 8. The power of this court in its revisionary jurisdiction is founded under section 362 of the Criminal Procedure Code (Cap 75),Laws of Kenya which provides that:'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.'

9. Additionally, article 165 (6) of the Constitution of the Kenya 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.'

10. The jurisdiction of this court is not in doubt in view of the above provisions. On the merits of the application, the applicant seeks a revision of the order of the trial court, which sentenced him to serve ten (10) years imprisonment.

11. The argument that the court did not consider the pre-trial remand is based on the provision of section 333 (2) of the Criminal Procedure Code (Cap 75), Laws of Kenya which 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.'

12. It is therefore clear that the period during which an accused has been held in custody before being sentenced must be taken into account in meting out the sentence. While the court may at its discretion decide that the sentence shall run from the date of sentencing or conviction, I find that the court cannot depart from the above provisions.

13. However, where the notes on sentence do not indicate the date from which it ought to run, the presumption must be in favour of the accused that the same will be computed inclusive of the period spent in custody.

14. I have perused the proceedings of the subordinate court. The applicant was arrested on February 28, 2014 and was charged in court on March 3, 2014. He was granted bail/bond but could not afford; thus, he was in pre-trial custody until he was convicted on July 5, 2017, which is a period of 3 years and one month. From the record, during sentencing, the trial court noted that the accused had been in custody for a period of three years. She then proceeded to sentence the applicant to a term of 10 years imprisonment.

15. The provisions of section 11 (1) of the Sexual Offences Act prescribe a minimum sentence of ten years, which provisions read as follows:'11(1)Any person who commits an indecent act with a child is guilty of the offence of committing an indecent act with a child and is liable upon conviction to imprisonment for a term of not less than ten years.'

16. It is therefore clear that the trial court imposed the minimum mandatory prescribed sentence of ten years. The period of three years and one month when he was in pre-trial remand custody was not considered and was not given effect. I am therefore entitled to interfere with the sentencing discretion of the trial court.

17. Consequently, I hereby consider that period with the result that the applicant will now serve ten years less three years and one month. This sentence will run from the date of conviction.

18. The upshot of the foregoing analysis is that the application for revision by the applicant succeeds as shown above.

RULING SIGNED, DATED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 16TH OF NOVEMBER 2022. J M BWONWONG’AJUDGEIn the presence of-Mr Kinyua court assistantThe applicant in person.Ms Edna Ntabo for the Respondent