[2022] KEHC 13665 (KLR)

Nderitu v Republic (Criminal Revision E031 of 2022) [2022] KEHC 13665 (KLR) (13 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13665 (KLR)

Republic of Kenya

In the High Court at Nyeri

Criminal Revision E031 of 2022

FN Muchemi, J

October 13, 2022

Between

Jackson Ngara Nderitu

Applicant

and

Republic

Respondent

Ruling

Brief facts 1. The undated application was filed on April 25, 2022 and is brought under section 333(2) of the Criminal Procedure Code. It seeks for orders that the court considers the time spent in custody during the pendency of the trial from the date of arrest.

2. The applicant was convicted by the High Court in Nyeri in Criminal case no 7 of 2014 with the offence of murder contrary to section 203 as read with section 204 of the Penal Codein which he was sentenced to serve twenty five (25) years imprisonment.

3. The applicant has now sought rehearing on sentencing and asks the court to invoke section 333(2) of the Criminal Procedure Code and grant him a lesser sentence.

4. This application was disposed of by way of written submissions which were duly filed by both parties.

The Applicant’s Submissions 5. The applicant seeks the provisions of section 333(2) of the Criminal Procedure Code be invoked so as to consider the 5 years and 29 days he spent in remand pending disposal of his trial and that the said period be remitted from the 25 years sentence. As such his plea is that the court reviews his sentence and computes it to run from the date of his arrest.

6. The applicant submits that even though the trial court considered the time spent in custody, he urges the instant court to reconsider the same arguing that nothing on the court record shows how the time spent in custody was considered during sentencing. He further states that he is remorseful and that the period already spent in custody has reformed him.

The Respondent’s Submissions 7. The respondent opposed the application and submitted that the applicant was charged with a serious offence and the trial court noted that the attack was vicious and that the applicant was armed with a panga which is a dangerous weapon. The respondent submits that the applicant followed the deceased, who was his father in law and attacked him with the panga and immediately left the scene. The injury inflicted on the deceased was indeed intended to kill him. Further, the respondent submits that the applicant’s act was well planned and intentional as he travelled all the way to the deceased’s home while armed with a panga.

8. The deceased sustained a compound fracture on the right side of the head with injuries to the bone, behind the ear and the middle ear. The cause of death was a head injury due to sharp trauma. Furthermore, the deceased was 60 years and the act was unprovoked. The applicant went into the deceased’s house well aware of the fact that the injuries inflicted on the deceased with the panga would cause permanent injuries that would cause his death. As such, the murder was a violent act against a defenceless man.

9. The respondent argued that the applicant was given a chance to mitigate during sentencing through his counsel which factors were taken into consideration. Further, the defence counsel asked the court to consider the 5 years 29 days spent in remand. The trial court proceeded to sentence the applicant and recorded that the period spent in remand had been considered. Thus, the respondent states that the applicant was accorded a fair trial until the last stage of sentencing. The respondent further submits that from the record, the court was guided by the gravity of the offence, aggravating factors in the case and a sentencing report.

10. The respondent contends that the applicant is serving a legal sentence. The trial court ably noted that the offence attracted a penalty of death but was lenient to give the applicant 25 years imprisonment considering the guidelines under the Muruatetu Supreme court petition.

11. The respondent further states that the time served by the applicant has not served the purposes for which imposition of sentence was intended in a case where an innocent life was lost. The family of the deceased has not had adequate time to heal in the short time that the applicant has been serving sentence. Additionally, the secondary victims cannot have recovered from the horrific incident. During sentencing, the court noted that the secondary victims were yet to come to terms of the incident and that they required psychosocial support for the trauma. Further in 2019, during sentencing the trial judge noted the same when a victim impact statement was filed to guide the court during sentencing. The applicant was charged with a serious and aggravated offence and the sentence is thus commensurate with the offence. As such, the applicant is thus not entitled to a review of the sentence. Further, the respondent contends that the applicant is not serving an excessive sentence and the time spent in remand was taken into account as required under section 333(2) of the Criminal Procedure Code. As such, the respondent prays that the application be dismissed.

Issue for determination 12. On perusal of the application and the submissions, the main issue for determination herein is whether the applicant is entitled to the orders sought herein.

The Law 13. Section 333(2) of theCriminal Procedure Codeprovides:-“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 sub section (1) has prior, to such sentence shall take account of the period spent in custody.”

14. It is clear from the above proviso that the law requires courts to take into account the period the convict spent in custody during the pendency of the trial.

15. The provisions of section 333(2) of the Criminal Procedure Code was the subject of the decision in Ahamad Abolfathi Mohammed & Another vs Republic [2018]eKLR where the Court of Appeal held that:-“The second is the failure by the court to take into account in a meaningful way, the period that the appellants had spent in custody as required by section 333(2) of the Criminal Procedure Code. By dint of section 333(2) of the Criminal Procedure Code, the court was obliged to take into account the period that they had spent in custody before they were sentenced.

16. According to The Judiciary Sentencing Policy Guidelines:“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 trail. 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.

17. It is my considered view that this provision is not applicable in the instant case as the prescribed punishment of the offence of murder under section 204 of the Penal Code has not changed since the time the applicant committed the offence to the time his conviction and sentence.

18. I take judicial notice that since the Supreme Court petition judgment of 2017, the courts have been following the principles laid therein in sentencing in murder cases. The problem that the Muruatetu decision sought to resolve was the mandatory nature of death sentence under section 204 of the Penal Code. The mandatory nature of death sentence was declared unconstitutional. In all the post-Muruatetu decisions the courts have been alive to the fact that they have capital discretion in sentencing in cases of murder. Judgement and sentencing in this petition came two years after the supreme court judgement and therefore the learned judge applied the principles in the Muruatetu petition in sentencing the applicant.

19. The record shows that the defence counsel addressed the court on the Muruatetu petition in his mitigation. The judge in her statement before pronouncing the sentence said that she had taken into account the circumstances of the offence, the period spent in custody, the age of the applicant and the serious nature of the offence. The pre-sentence report gave an account of the trauma faced by the victims especially the wife and daughter of the deceased who witnessed the horrific incident and further stated that the victims have not recovered from the trauma.

20. This is a case with aggravating circumstances in that the appellant killed the deceased without any provocation. He followed the deceased from behind and cut him with a panga fatally injuring him. the deceased died on the spot due to the severe head injury that caused compound fracture on the temporal bone and affected the internal organs. This kind of cruelty and brutality deserved a more severe sentence. The appellant was lucky to get only twenty-five(25) years imprisonment.

21. I am convinced that the record speaks for itself that section 333(3) of the Criminal Procedure Code was taken into consideration by the trial judge and that the principles in the Muruatetu petition were applied in sentencing the accused. The period of 5 years and 29 days during the pendency of the trial was taken into consideration. As such this petition is asking this court to do what has already been dealt with by the trial judge.

22. I have noted that the applicant has relied on article 50(2)(p) of the Constitution and seeks to have the court grant his a lesser sentence. article 50(2)(p) provides:-(2)Every accused person has the right to a fair trial, which includes the right-(p)To benefit of the least severe of the prescribed punishments of the offence, if the prescribed punishment of the offence has been changed between the time of the offence was committed and the time of sentencing.

23. Consequently, I find no merit in this application for review and re-sentencing and hereby dismiss it accordingly.

24. It is hereby so ordered.

DATED AND SIGNED AT NYERI THIS 13TH DAY OF OCTOBER, 2022. F. MUCHEMIJUDGERuling delivered through video link this 13thday of October, 2022