[2022] KEHC 16243 (KLR)

Nkumum v Republic (Criminal Petition E032 of 2021) [2022] KEHC 16243 (KLR) (14 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16243 (KLR)

Republic of Kenya

In the High Court at Narok

Criminal Petition E032 of 2021

F Gikonyo, J

December 14, 2022

Between

Richard Katoni Nkumum

Petitioner

and

Republic

Respondent

(Being an application from the original conviction and sentence of Hon. Abdul (R.M.) in Narok Criminal Case No. 145 of 2011 on 14/9/2012)

Judgment

Time spent in custody [1]In an undated application filed on December 24, 2021, the petitioner sought for review of sentence by taking into account time spent in remand custody. He has founded his application upon articles 2, 10, 19(3), 22(1)(3), 23, 25 (c), 27(1)(2), 28, 29(f), 159(1), 160(1), 165(3), (b), 259 and sixth schedule (article 262) rule 7(1) of theConstitution, section 333(2) of the Criminal Procedure Code and section 38 of the Penal Code.

[2]The petitioner stated that his appeal to this court upheld his conviction and sentence. I have perused the record and I do note communication from Nakuru High court to the effect that he withdrew his appeal. Nevertheless, he was convicted of the offence of defilement contrary to section 8(1) (3) of the Sexual Offences Act No 3 of 2006, and sentenced to serve 20 years’ imprisonment.

Applicant’s submissions [3]The applicant orally submitted in court that he was only seeking time spent in custody to be taken into account in the sentence imposed herein.

Prosecution’s submission [4]Mr Karanja urged this court to call for the trial court record and establish whether the time spent in custody was taken into account.

Analysis And Determination [5]According to section 333(2) of the Criminal Procedure: -“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.”

[6]See also section 137I (2) (a) of theCPC that: -(2)In passing a sentence, the court shall take into account—(a)The period during which the accused person has been in custody;

[7]Court’s duty under, and the object of section 333(2) of theCPChas been explained in the Judiciary Sentencing Policy Guidelines (under clauses 7. 10 and 7. 11) as follows:“The provision 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.”

[8]Judicial pronouncements have also buttressed the importance of section 333(2) of the CPCin sentencing. See the Court of Appeal in Ahamad Abolfathi Mohammed &another vs. Republic [2018] eKLR that, courts must give real effect to the section in sentencing; and that merely stating that you have taken account of time spent in custody is not sufficient if the sentence, in light of the overall circumstances of the case, does not show that the period spent in custody prior to sentencing had been taken account of.

[9]Accordingly, failure to give effect the proviso to section 333(2) of the CPC opens the accused to a real risk of serving a more severe sentence than lawfully prescribed or proportional to the offence. Thus, a convicted person who so surfers may therefore, found an action ‘’for redress of a denial, violation, or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights’’ under article 23(1) and 165(3)(b) of the Constitution.

Applying the test [10]From the trial court typed proceedings, judgment, and sentence, the following relevant dates are discernible; the accused was arraigned in court on February 4, 2011 and was sentenced on September 14, 2012 to serve 20 years’ imprisonment.

[11]The petitioner in his application claims to have preferred an appeal to this court in which his conviction and sentence was affirmed. He did not produce the appeal file or proceedings. Nonetheless, it bears repeating, that the communication from Nakuru High Court shows that the appeal was marked as withdrawn.

[12]But, I note far more fundamental misrepresentation. The appellant misled the court in his application that he was sentenced to serve 10 years’ imprisonment, yet, the record of the trial court show that he was sentenced to serve 20 years’ imprisonment. In the circumstances of this case, I will fall back to the record of the trial court.

[13]The trial court (Hon Z Abdul (RM) Stated as follows: -“I am convinced by the evidence advanced and the prosecution has proved its case beyond a reasonable doubt. I am further convinced that the accused defiled Faith Kakenya a child aged 12 years contrary to the provisions of section 8(1) (3) of the sexual offences act No 3 of 2006. Accused is found guilty and sentenced to serve twenty (20) years imprisonment.”

[14]The trial court did not indicate whether it took into account time spent in custody when imposing a sentence of 20 years’ imprisonment. And given the object of section 333(2) of the CPC- to prevent a person from serving more severe or excessive sentence than is lawfully prescribed or proportional to the offence- the petitioner did not get the benefit of section 333(2) of the CPC. In consequence thereof, he is entitled to redress.

[15]In the circumstances, the petition succeeds to the extent that the sentence of 20 years’ imprisonment shall run from the date he was first arraigned in court, that is on February 4, 2011.

[16]It is so ordered.

DATED, SIGNED, AND DELIVERED AT NAROK THROUGH MICROSOFT TEAMS ONLINE APPLICATION, THIS 14TH DAY OF DECEMBER, 2022. ..................................................F. GIKONYO M.JUDGEIn the presence of:1. Petitioner2. Ms. Torosi for DPP3. Mr. Kasaso - CA