[2023] KEHC 26970 (KLR)

Nyakundi v Republic (Criminal Revision E108 of 2023) [2023] KEHC 26970 (KLR) (14 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26970 (KLR)

Republic of Kenya

In the High Court at Nyamira

Criminal Revision E108 of 2023

WA Okwany, J

December 14, 2023

Between

Julius Nyangau Nyakundi

Applicant

and

Republic

Respondent

(Being an Application for Revision against the Conviction and Sentence of Hon. W. K. Chepseba – CM Nyamira dated and delivered on the 8th day of May 2023 in the original Nyamira CMC Sexual Offence Case No. 22 of 2021)

Ruling

1. The Applicant herein, Julius Nyangau Nyakundi, was on March 8, 2021 charged before the Lower Court in Nyamira CMCRC SOA No. 22 of 2021 with the offence of Incest contrary to section 20 (1) of the Sexual Offences Act.

2. He also faced the alternative charge of Committing an indecent act with a child contrary to section 11 (2) of the Sexual Offences Act.

3. The Applicant was at the end of the trial convicted on the main count of Incest and sentenced to serve ten (10) years imprisonment.

4. He has now filed the application dated 15th August 2023 under section 333 (2) of the Criminal Procedure Code for orders that the period he spent in remand custody be considered in calculating his prison term.

5. Section 333 (2) of the Criminal Procedure Code stipulates 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.

6. The Judiciary Sentencing Policy Guidelines also speaks to the issue of the period spent by an accused person in pre-trial custody at paragraph 7 thereof as follows: -7. 10. 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.7. 11. 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.

7. In the case of Bethwel Wilson Kibor vs. Republic [2009] eKLR, the Court of Appeal held thus: -“By proviso to section 333(2) of Criminal Procedure Code where a person sentenced has been held in custody prior to such sentence, the sentence shall take account of the period spent in custody. Ombija, J. who sentenced the appellant did not specifically state that he had taken into account the 9 years period that the appellant had been in custody. The appellant told us that as at 22nd September, 2009 he had been in custody for ten years and one month. We think that all these incidents ought to have been taken into account in assessing sentence. In view of the foregoing we are satisfied that the appellant has been sufficiently punished. We therefore allow this appeal and reduce the sentence to the period that the appellant has already served. He is accordingly to be set free forthwith unless otherwise lawfully held.”

8. The principle that flows from the above precedent and statutory provisions is that the trial court is required to consider the period that an accused person has spent in pre-trial custody during sentencing.

9. In the present case, I note that the Applicant first appeared in court on 8th March 2021 and stayed in remand custody throughout his trial period. He was sentenced on July 6, 2023. A perusal of the trial court record reveals that the court made the following remarks during his sentence: -“I have considered the probation report and the period spent in custody. Accused to serve (10) years imprisonment. 14 days right of appeal.”

10. From the remarks made by the trial court, it is clear that section 333 (2) of the Criminal Procedure Code was complied with during sentencing as the period spent in remand custody was considered.

11. Consequently, I find that the instant application is not merited and I therefore dismiss it.

12. It is so ordered.

RULING DATED, SIGNED AND DELIVERED AT NYAMIRA VIRTUALLY VIA MICROSOFT TEAMS THIS 14THDAY OF DECEMBER 2023. W. A. OKWANYJUDGE