[2024] KEHC 4251 (KLR)

Ngikuno v Republic (Criminal Miscellaneous Application E037 of 2023) [2024] KEHC 4251 (KLR) (17 April 2024) (Ruling)

Neutral citation: [2024] KEHC 4251 (KLR)

Republic of Kenya

In the High Court at Lodwar

Criminal Miscellaneous Application E037 of 2023

RN Nyakundi, J

April 17, 2024

Between

Justus Korobe Ngikuno

Applicant

and

Republic

Respondent

Ruling

1. The applicant was charged in the trial court with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars were that on 10th May, 2019 at Nacelle in Turkana North Sub County, the applicant murdered Ewoton Lasapireit.

2. The applicant was convicted of the said charge and a twenty years sentence was imposed. That the sentence was remitted to 13 years and 6 months by the Kenya Prisons Services pursuant to Section 46(2) of the Prisons Act CAP 90 Laws of Kenya. The applicant has now filed the instant application seeking to benefit from the provisions of Section 333(2) of the CPC.

Analysis And Determination 3. I have considered the application and the court’s mandate is to determine the application of section 333(2) of the Criminal procedure code. The section provides as follows:(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.

4. The Judiciary Sentencing Policy Guidelines are also clear in this respect. They require that the court should take into account the time already served in custody if the convicted person had been in custody during the trial. Further, that a failure to do so would impact on the overall period of detention which would result in excessive punishment that in turn would be disproportionate to the offence committed.

5. In the case of Ahamad Abolfathi Mohammed & another v Republic [2018] eKLR, 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. Although the learned judge stated that he had taken into account the period the appellants had been in custody, he ordered that their sentence shall take effect from the date of their conviction by the trial court. With respect, there is no evidence that the court took into account the period already spent by the appellants in custody. “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. We find that the first appellate court misdirected itself in that respect and should have directed the appellants’ sentence of imprisonment to run from the date of their arrest on June 19, 2012. ”

6. It follows then that the court should state in its decision that it indeed the time spent by the accused in custody has been considered and that it has factored it in the final sentence. Failure to do so means that the period has not taken into consideration.

7. The punishment prescribed by the law for the offence of murder is death sentence. I take note that the applicant was found guilty of the offence of murder. The trial court in its sentencing decision stated that the mitigating factors were considered. The court did not clearly state whether section 333(2) was considered.

8. However, given the penalty attached to the offence, I find the sentence rather lenient and reasonable and as such the applicant cannot again benefit from the provisions of section 333(2) of the CPC.

9. In its wisdom, I believe the trial court considered the bounds of section 333(2) of the Criminal Procedure Code in giving an appropriate sentence. The application is thus dismissed.

DATED AND SIGNED AT ELDORET THIS 17TH DAY OF APRIL, 2024R. NYAKUNDIJUDGEIn the Presence ofMr. Onkoba for the State.Accused