[2023] KEHC 24523 (KLR)

Nzili & another v Republic (Petition 17 of 2022) [2023] KEHC 24523 (KLR) (2 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24523 (KLR)

Republic of Kenya

In the High Court at Mombasa

Petition 17 of 2022

OA Sewe, J

November 2, 2023

THE CONSTITUTION OF KENYA (SUPERVISORY JURISDICTION AND PROTECTION OF FUNDAMENTAL RIGHTS AND FREEDOM OF THE INDIVIDUAL) HIGH COURT PRACTICE AND PROCEDURE RULE 2013 AND IN THE MATTER OF REVIEW OF SENTENCE AND IN THE MATTER OF ARTICLE 22(1), 23(1) OF THE CONSTITUTION AND IN THE MATTER OF ARTICLES 2,19,20,21,22(1),23(1), 24,25,27,28,29,50,53 OF THE CONSTITUTION AND IN THE MATTER OF ARTICLES 258 AND 259 OF THE CONSTITUTION AND IN THE MATTER OF SECTION 258 OF THE PENAL CODE AND IN THE MATTER OF SECTION 333(2) OF THE CRIMINAL PROCEDURE CODE

Between

Kamili Kuhenderwa Nzili

1st Petitioner

Catherine Titus Nduleve

2nd Petitioner

and

Republic

Respondent

Judgment

[1]The petitioners were, on the 10th April 2019, convicted of the offence of abduction in order to murder contrary to Section 258 of the Penal Code, Chapter 63 of the Laws of Kenya, and were sentenced to 10 years’ imprisonment in Kwale Chief Magistrate’s Criminal Case No. 128 of 2017. Being dissatisfied with the decision of the subordinate court, the petitioners filed Criminal Appeal No. 77 of 2019 and Criminal Appeal No. 78 of 2019, respectively. The two appeals were thereafter consolidated for purposes of expedient hearing and determination. The appellate court (Hon. Njoki Mwangi, J.) upheld both the conviction and the sentence of imprisonment of 10 years imposed on the petitioners. The sentence was affirmed with effect from 10th April 2019 when the petitioners were sentenced by the lower court.

[2]The petitioners thereafter filed the instant Petition on 2nd February 2021 seeking that the period spent in custody prior to their conviction be taken into account and counted as part of their sentence. They also prayed that, the remainder of their sentence, if any, be converted into a non-custodial sentence pursuant to Section 4(2) of the Probation of Offenders Act. They relied on their joint affidavit sworn on 1st February 2021 in which they averred that they were arrested, charged, tried, convicted and sentenced to 10 years’ imprisonment for the offence of abduction in order to murder contrary to Section 258 of the Penal Code; and that throughout their trial they were denied bail. They accordingly prayed that their sentence of 10 years be ordered to run from the date of their arrest, namely 25th January 2017. The petitioners principally relied on Section 333(2) of the Criminal Procedure Code, Chapter 75 of the Laws of Kenya.

[3]The Petition was unopposed by the respondent and was urged by way of written submissions. To that end, the petitioners relied on their written submissions filed herein on 2nd February 2021. They essentially reiterated the averments in their Supporting Affidavit and quoted the provisions of Section 333(2) of the Criminal Procedure Code. They likewise quoted Articles 27 and 50(2)(p) and (q) of the Constitution as to their right to review as well as to the benefit of the least of the prescribed punishments applicable to them. In support of their submissions, the petitioners relied on Daniel Muthomi M’Arimi v Republic, Nyeri Criminal Appeal No. 166 of 2011.

[4] Section 333(2) of the Criminal Procedure Code provides that:(2)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 subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.”

[5]Accordingly, the law is explicit that the period spent in custody pending trial ought to be taken into account at the time of sentencing. Here is what the Court of Appeal had to say in this regard in Bethwel Wilson Kibor v Republic [2009] eKLR: -“…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….”

[6]Similarly, in Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR the Court of Appeal reiterated its stance thus:“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…The appellants have been in custody from the date of their arrest on 19th June 2012. 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…It must be remembered that the proviso to section 333(s) 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 19th June 2012…”

[7]Further to the foregoing, the Judiciary Sentencing Guidelines (2023) (under Clauses 2. 3.18 and 2. 3.19) explain that: - 2. 3. 18Section 333 (2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody. Failure to do so impacts the overall period of detention which may result in a punishment that is not proportionate to the seriousness of the offence committed. This also applies to those who are charged with offences that involve minimum sentences as well as where an accused person has spent time in custody because he or she could not meet the terms of bail or bond.

2. 3.19Upon determining the period of imprisonment to impose upon an offender, the court must then deduct the period spent in custody in identifying the actual period to be served (see GATS at Part V). This period must be carefully calculated – and courts should make an enquiry particularly with unrepresented offenders – for example, there may be periods served where bail was interrupted and a short remand in custody was followed by a reissuance of bail e.g., where a surety is withdrawn, and a new surety is later found. This calculation must include time spent in police custody.

[8]In this case, it is evident from the record of the trial court that the petitioners were arrested on the 25th January 2017 and were thereafter arraigned in court on the 20th February 2017. An application for bail and bond was presented before the court and it was not until the 7th March 2017 that a decision was made thereon. The petitioners were accordingly admitted to cash bail of Kshs. 500,000/=; in the alternative to bond of Kshs. One Million with a surety of a similar amount.

[9]Thereafter, on the 12th June 2017, the trial court reviewed and cancelled its order for the release of the petitioners on bail and directed that they remain in custody pending further hearing and determination of the case. The court was of the view that there was inherent danger of the petitioners absconding or interfering with witnesses. The change of position was informed by the evidence presented by the prosecution witnesses, especially PW2. Thus from the record, it is evident that only the 1st petitioner had posted bail at the time, and had to be placed back in remand after the court rescinded the bail/bond terms on the 12th June 2017. The 2nd Petitioner has, therefore, been in custody since the date of arrest on the 25th January 2017.

[10]Hence, it is clear that the 1st petitioner had spent a period of about 1 year, 11 months and 9 days in remand; being the period from 25th January 2017 to 7th March 2017, then from 12th June 2017 to 10th April 2019 when the trial court delivered its judgment. As for the 2nd Petitioner, the record is clear that she was in remand from the date of her arrest on the 25th January 2017 to the date of conviction on 10th April 2019 which makes the period in remand to be 2 years, 2 months and 17 days. It is also manifest that neither the trial court nor the appellate court took into consideration the pre-conviction detention period in their respective decisions.

[11]Thus, the two issues arising herein for determination are whether, in the circumstances, the petitioners are entitled to a reconsideration of their sentence for purposes of Section 333(2) of the Criminal Procedure Code; and whether the remainder of their sentence ought to be converted to a non-custodial sentence.

[12]It is not lost on the Court that the matter of the petitioners’ sentence has been the subject of an appeal; and that a determination thereon has been made by a Court of concurrent jurisdiction. Hence, the first question to pose is whether the issue of sentence review is competently before the Court. This is a threshold issue that must be dealt with before a consideration of the merits of the Petition; and having given it careful consideration, I am convinced that the Petition is tenable in so far as the petitioners allege violation of Articles 27 and 50(2) of the Constitution. The Court’s jurisdiction in this regard is reposed in Article 165(3)(b) of the Constitution, which states:(3)Subject to clause (5), the High Court shall have—…(b)jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened.”

[13]I find succor for my posturing in the decision of Hon. Odunga, J. (as he then was) in the case of Jona & 87 others v Kenya Prison Service & 2 others (Petition 15 of 2020) [2021] KEHC 457 (KLR) (18 January 2021) (Judgment), in which a similar question arose. The Court held:“…What then is the position where as a result of the failure to apply the said provisions, a person has exhausted his appellate options? In my view, unless the sentence was substituted by the appellate court, the same position applies. Where the appellate court considered the appeal and disallowed the same without interfering with the sentence, it is clear that the decision on sentencing remains that of the trial court and if that sentence was imposed in contravention of the provisions of section 333(2) of the Criminal Procedure Code, nothing bars this court in the exercise of its constitutional mandate pursuant to article 165 of the Constitution from redressing the situation.Accordingly, notwithstanding a dismissal of an appeal, a person sentenced in disregard of section 333(2) aforesaid is not thereby disentitled from invoking this court’s supervisory jurisdiction to consider whether or not the sentence imposed was lawful. While it may be argued that in so doing this court would be interfering with the decision of the appellate court which in effect affirmed the decision of the trial court, in my respectful view that would not be the position where an appeal is simply dismissed without the sentence being reviewed. Even if the same was reviewed, the jurisprudence in this country holds to the contrary…”

[14]I have read the appellate court’s judgement dated 18th December 2020 and one of the issues raised for determination was whether the sentence of 10 years’ imprisonment could be regarded as being either harsh or excessive. The appellate court proceeded to express itself thus in that regard:“…In this case the victim was never found. The evidence adduced by PW4 was that the victim was killed and burnt to ashes. The 2nd appellant led the police to the scene of the crime and showed them the shallow grave and burnt out ashes of the victim. Evidence leading to the discovery is admissible. The Investigating Officer said he did not charge the appellants with the offence of murder as the specimen collected from the burnt up area including small pieces of burnt bone fragments submitted to the Government Chemist did not yield DNA and because the victim’s body was not recovered. As at the time when the last civilian witness testified in Court on 2nd October, 2017, the victim Mbega Gwaru Ngowa alias Mbega Kwani had not been found after being abducted on the 3rd January, 2017. Given the said circumstances, I uphold the sentence of 10 years imprisonment imposed on each of the appellants from 10th April 2019 when they were sentenced by the lower Court.

[15]Thus, since the appellate court did not interfere with the sentence of 10 years or factor in the provisions of Section 333(2) of the Criminal Procedure Code, it is permissible for the Court to reconsider the matter as a constitutional issue for purposes of Article 165 and prescribe appropriate redress. Indeed, in Jona & 87 others v Kenya Prison Service & 2 others (supra) this point was underscored thus:“A holistic consideration of the above provisions clearly show that this court has the power to redress a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights and one such violation is the denial or threat of denial of freedom without a just cause such as where the sentence that a person risks serving is in excess of the lawfully prescribed one by failing to comply with section 333(2) of the Criminal Procedure Code.”

[16]I am therefore satisfied that the petitioners are entitled to have their 10 year sentences reckoned in accordance with Section 333(2) of the Criminal Procedure Code, by taking into account their respective pre-conviction detention periods. In Ahamad Abolfathi Mohammed & Another v Republic (supra), the Court of Appeal explained that:“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…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 19th June 2012…”

[17]As to whether the court can grant them a non-custodial sentence pursuant to Section 4(2) of the Probation of Offenders Act, it is clear that the crime herein was heinous wherein the victim was abducted and presumed murdered. Hence, it is my finding that the circumstances of this case do not commend themselves to outright non-custodial sentence. That aspect of the Petition is accordingly declined.

[18]In the result, the Petition is partly allowed to the extent that the petitioners’ 10-year imprisonment terms shall take into account the period of 1 year, 11 months and 9 days and 2 years, 2 months, 17 days spent in remand by the 1st petitioner and 2nd petitioner, respectively. The prayer for a non-custodial sentence is however dismissed.It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 2ND DAY OF NOVEMBER 2023OLGA SEWEJUDGE