[2022] KEHC 15099 (KLR)

Nyamweya v Republic (Criminal Appeal 261 of 2019) [2022] KEHC 15099 (KLR) (Crim) (13 October 2022) (Judgment)

Neutral citation: [2022] KEHC 15099 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Appeal 261 of 2019

JM Bwonwong'a, J

October 13, 2022

Between

Idris Nyamweya

Appellant

and

Republic

Respondent

(Being an appeal against the sentence of 15 years imprisonment delivered by Hon. Juma, SPM, on 12th April 2019 in the Kibera Chief Magistrate’s Court in Sexual Offence Case No. 102 of 2016 Republic v Idris Nyawmeya & Another)

Judgment

1. The appellant with another not before this court, was charged with the offence of offence gang rape contrary to section 10 of the Sexual Offences Act No 3 of 2006. In the alternative, he was charged with committing an indecent act with an adult contrary to section 11 (A) of the Sexual Offences Act No 3 of 2006. He was convicted on the main charge on April 12, 2019 and was sentenced to fifteen (15) years imprisonment.

2. Being dissatisfied with the conviction and sentence the appellant filed this an appeal in which he raised six main grounds of appeal in his petition of appeal. The main grounds are as follows:1. The learned magistrate erred in law and fact in convicting the appellant when he was not properly identified as the perpetrator.2. A prima facie case was not established.3. The learned magistrate erred in law and fact in failing to take into account that essential witnesses were not summoned to court to testify.4. The learned magistrate did not give reasons for his decision as required by section 169 (2) of the Criminal Procedure Code (cap 75) Laws of Kenya.5. The learned magistrate failed to give due regard to the appellant's defence and that the trial magistrate did not consider section 333 (2) of the Criminal Procedure Code (cap 75) Laws of Kenya in sentencing him.

3. On July 12, 2022 when the matter came before the court the appellant abandoned his grounds of appeal save for the non-application of section 333(2) of the Criminal Procedure Code (cap 75) Laws of Kenya. He stated that his appeal was only on the sentence and prayed that the period he spent in the pre-trial remand custody be considered.

Analysis and determination 4. Section 333 (2) of the Criminal Procedure Code (cap 75) Laws of Kenya provides that: -

5. 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.

6. Provided that where the person sentenced under sub-section (1) has prior, to such sentence shall take account of the period spent in custody.

7. It is clear from the above proviso that the law requires courts while sentencing an accused person has to take into account the period the accused spent in pre-trial custody. The JudiciarySentencing Policy Guidelines in that regard also provide that: -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. 12. An offender convicted of a misdemeanour and had been in custody throughout the trial for a period equal to or exceeding the maximum term of imprisonment provided for that offence, should be discharged absolutely, under section 35 (1) of the Penal Code.”

8. The requirement to comply with section 333 (2) Criminal Procedure Code is mandatory in the computation of the sentence to be served by a convict upon sentencing. The requirement is also amplified by the Judiciary Sentencing Policy and is thus an integral part of the sentencing process to avoid excessive punishment that is not proportional to the offence committed.

9. The Court of Appeal also pronounced itself in respect of the said provisions in the case of Bethwel Wilson Kibor v Republic [2009] eKLR, in which that court observed as follows: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 September 22, 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."

10. In the instant appeal, as per the original record, the appellant was charged with gang rape contrary to section 10 of the Sexual Offences Act No 3 of 2006. The date of arraignment was November 17, 2016 when he was granted bail/bond in the sum of Kshs 400,000/=. On December 1, 2016, the bond terms were revised to Kshs 100,000/= with one surety. On March 14, 2017 the terms were again revised to a cash bail of Kshs 150,000/= with two credible contact persons. The appellant remained in custody during the entirety of the trial period which ended when he was sentenced to serve 15 years imprisonment on April 12, 2019.

11. During sentencing the learned trial magistrate stated:The 1st accused is a first offender. Court considered the fact in mitigation. The first accused is sentenced to serve fifteen (15) years imprisonment. 14 days right to appeal explained.”

12. In compliance with section 333 (2) Criminal Procedure Code, the computation of the sentence ought to include the period the appellant was in custody during the hearing and determination of the case before the sentence was meted out. The appellant was placed in custody on November 17, 2016 and sentenced on April 12, 2019. It is clear from the foregoing that indeed the court did not consider the period the applicant had spent in custody which is 2 years and 5 months during the trial.

13. It therefore follows that the appellant’s appeal has succeeded with the result that he will now serve 15 years imprisonment less 2 years and 5 months, which translates to 12 years and 7 months. The sentence of 12 years and 7 months is ordered to run from November 17, 2016 in compliance with the provisions of section 333 (2) of the Criminal Procedure Code.

Ruling signed, dated and delivered in open court at Nairobi this 13th day of October 2022. J M BWONWONG’AJUDGEIn the presence of-Mr Kinyua: Court AssistantThe appellant in personMr Kiragu for the respondent