[2023] KEHC 26570 (KLR)

Okerio v Republic (Criminal Revision E109 of 2023) [2023] KEHC 26570 (KLR) (14 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26570 (KLR)

Republic of Kenya

In the High Court at Nyamira

Criminal Revision E109 of 2023

WA Okwany, J

December 14, 2023

Between

Geoffrey Ogamba Okerio

Applicant

and

Republic

Respondent

(Being an Application for Revision against the Conviction and Sentence of Hon. M. C. Nyigei – PM Nyamira dated and delivered on the 24th day of November 2022 in the original Nyamira CMC CR. Case No. E520 of 2022)

Ruling

1. The Applicant herein, Geoffrey Ogamba Okerio, was charged before the Lower Court in Nyamira CMCRC No. E520 of 2023 with the offence of Robbery with violence contrary to Section 295 as read with Section 296 (2) of the Penal Code.

2. The particulars of the charge were that on the 8th day of May 2022 in Charachani Sub-location in Nyamira Sub-county within Nyamira County robbed Lewis Nyamboke a mountain bicycle valued at Kshs. 25,000/= and immediately before the time of such Robbery beat the said Lewis Nyamboke.

3. The Applicant also faced the alternative charge of Handling stolen property contrary to Section 322 (1) of the Penal Code.

4. The particulars of the alternative charge were that on 14th May 2022 in Charachani Sub-location in Nyamira North Sub-county within Nyamira County, he was found in possession of a mountain bicycle valued at Kshs. 25,000/= the property of Lewis Nyamboke.

5. The prosecution presented the evidence of 4 witnesses before the trial court and at the close of the trial, the Applicant was found guilty of the alternative charge of handling stolen property. He was subsequently convicted and sentenced to serve five (5) years imprisonment.

6. The Applicant has now filed an under section 333 (2) of the Criminal Procedure Code for orders that the period he spent in remand custody while awaiting his trial be considered and be deducted from his sentence period. Section 333 (2) of the Criminal Procedure Code 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.

7. 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.11In 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. 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.”

9. 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. This court however appreciates that while sentencing is a preserve of the trial court, sentences must be in tandem with the law. I am persuaded by the decision inS. vs Nchunu & Another (AR 24/11) [2012] ZAKZPHC6, where the Kwa Zulu Natal High Court stated: -“It is trite law that the issue of sentencing is one which vests a discretion in the trial court. The trial court considers what a fair and appropriate sentence should be. The purpose behind a sentence was set out in S Vs Scott-Crossley 2008 (1) SACR 223 (SCA) at para 35:“Plainly, any sentence imposed must have deterrent and retributive force. But off course one must not sacrifice an accused person on the altar of deterrence. Whilst deterrence and retribution are legitimate elements of punishments, they are not the only ones, or for that matter, even the overriding ones. ……. It is trite that it is in the interest of justice that crime should be punished. However, punishment that is excessive serves neither the interests of justice nor those of society.”

10. In the present case, a perusal of the Lower Court record reveals that plea was taken on 10th May 2022 and the Applicant remained in remand custody throughout the trial as he was unable to meet the bond terms that he was granted on 16th May 2022. The trial ended on 6th December 2022 when the Applicant was sentenced.

11. I note that the trial court did not consider the period that the Applicant spent in remand custody during sentencing as is envisaged under Section 333 (2) of the Criminal Procedure Code.

12. Consequently, I find that the instant application is merited and I therefore allow it and direct that the period that the Applicant spent in remand custody, while awaiting trial, be considered while calculating his prison term. In other words, I direct that the five (5) years prison term imposed on the Applicant begins to run from 10th May 2022 being the date when the Applicant first appeared in court.

13. It is so ordered.

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