[2022] KEHC 14954 (KLR)

Ole Sarite v Republic (Criminal Appeal 14 of 2019) [2022] KEHC 14954 (KLR) (7 November 2022) (Judgment)

Neutral citation: [2022] KEHC 14954 (KLR)

Republic of Kenya

In the High Court at Narok

Criminal Appeal 14 of 2019

F Gikonyo, J

November 7, 2022

Between

More Ole Sarite

Appellant

and

Republic

Respondent

(From the re-sentence of Hon. W. JUMA Chief Magistrate in Narok Criminal Case No 1138 of 2013 on 1st March 2019)

Judgment

Time Spent in Custody 1. The Appeal herein emanates from the resentencing decision of Hon W Juma in Narok Chief Magistrate’s Court Cr Case No 1138 of 2013 delivered on the March 1, 2019 in which the Appellant was Re-sentenced to 20 years’ imprisonment for the offence of Robbery with violence contrary to Section 295 as read with Section 296 (2) of the Penal Code.

2. The appellant vide memorandum of appeal dated March 4, 2019 has set out 7 grounds of appeal which can be condensed into three (3) as follows;i.That the learned trial magistrate erred in law and facts by not complying with section 333(2) of the CPC and Section 38 of the Penal Code.ii.That the learned trial magistrate did not take into consideration the appellant’s mitigation that he is a father of five school-going children and that he was the sole breadwinner of the family.iii.That the learned trial magistrate erred in law and fact by failing to find that the appellant was a first offender.

3. The appeal was canvassed by way of written submissions. Both parties filed their submissions.

Appellant’s Submissions. 4. The appellant submitted that the period spent in custody awaiting trial and conviction and the time spent in custody awaiting determination of the appeal was not taken into account.

5. The appellant submitted that he has embraced the rehabilitative programs offered at the correctional facility. Therefore, this court should consider the 8 years already served to be enough for rehabilitation.

6. The appellant has relied on the following authorities;i.Section 333(2) of theCriminal Procedure Code.ii.Section 38 of the Penal Code.iii.Ahmed Abolfathi case.iv.Michael Karanja Gikonyo Vs Republic 2021v.Frankline Kiprono V Republic[2021] eKLR.vi.Article 23(1), 165(3), 50(2) of the Constitution

Respondent’s Submissions 7. The prosecution submitted that, this court, (Bwonwong’a J), having determined an appeal on conviction, has no jurisdiction to determine questions of conviction. They cited the obvious; that the court has no supervisory jurisdiction over court of concurrent jurisdiction lest it should offend Article 165(6) of the Constitution. The only avenue to challenge conviction is the Court of Appeal pursuant to Section 361 of the Criminal Procedure Code.

8. But, on sentence; the respondent submitted that the sentence passed by the trial court was within the law.

9. The respondent submitted that the appellant has not laid down any evidence that would warrant this court to interfere with the exercise of discretion by the trial court. The trial court, they argued further, took into account the aggravating factors presented by the prosecution and the appellant's mitigation.

10. The respondent urged the court to consider the record of the proceedings from the time the appellant was arraigned in court in Narok Chief Magistrate Criminal Case No 1138 of 2013 during the first trial up to his first appeal at the high court at Naivasha and consequently, the retrial at the lower court and his consequent appeal at Narok high court and up to date whether he spend all this time in custody.

11. In the end, the respondent submitted that this court should uphold the sentence passed upon the appellant herein as being proper to the extent that the court exercised its discretion within the law at the time it applied Francis Muruatetu 1.

12. The respondent has relied on the following authorities;i.Peter Mugo Mathu & 2 Other V Republic[2015] eKLR.ii.More Ole Sarite & Another V Republic[2019 eKLR.iii.More Ole Sarite V Republic [2021 eKLRiv.Article 165(6) of the Constitution.v.Peter Nganga Muiruri V Credit Bank Limited & 2 Other[2008 eKLR.vi.S Vs Malgas 2001(1) SACR 469 (SCA)vii.Bernard Kimani Gacheru Vs Republic [2002 eKLR.viii.Section 333(2) of the Criminal Procedure Code.

Analysis and Determination Court’s duty 13. First appellate court is obligated to re-evaluate the evidence and make its conclusions but, bearing in mind that the trial court had the advantage of hearing and observing the demeanor of the witnesses. See Okeno vs Republic [1972] EA 32

14. I have considered the grounds of appeal, the re-sentence judgment of the lower court, and the appellant’s submissions. I find the main issue for determination is;i.Whether the sentence imposed was excessive; andii.Whether time spent in custody was taken into account in re-sentencing the appellant.

15. Before I delve into the issue for determination in this appeal, it is prudent to give a brief history of this matter.

16. The appellant herein was charged together with Peter Mugo Mathu and Musa Ikote Nkuruna with two counts of robbery with violence contrary to Section 296(2) of the Penal Code. Peter Mugo Mathu faced an alternative count of handling stolen goods contrary to Section 322(1) as read with Section 322(2) of the Penal Code. They were charged in Narok Chief Magistrate Case No 1138 of 2013. They were tried before (Hon TA Sitati (SRM) Peter Mugo Mathu was acquitted while More Ole Sarite and Musa Ikote Nkurruna were found guilty and convicted on the first count. On the 2nd count, More Ole Sarite and Musa Ikote Nkurruna were acquitted while Peter Mugo Mathu was found guilty and convicted. They were sentenced to death.

17. The appellants being dissatisfied with the sentence by the trial court appealed to the High court at Naivasha individually. The three appeals were consolidated. The court quashed the conviction of More Ole Sairite and Musa Ikote Nkurruna on the first count. The court upheld the conviction and sentence of Peter Mugo Mathu. The court ordered a retrial on the 1st count for More Ole Sarite and Musa Ikote Nkurruna before a different magistrate at Narok. see Peter Mugo Mathu & 2 others V Republic [2015 eKLR.

18. The re-trial commenced before the Hon W Juma and on August 4, 2017 she found them guilty and sentenced the two to death.

19. The appellant herein and Musa Ikote Nkurruna dissatisfied with the decision appealed to this court. Their appeals were consolidated. Bwonwong’a J found that the two were correctly convicted but quashed the sentence of death passed and ordered for re-sentence hearing before the trial court in accordance with the supreme court decision in the Francis Muruatetu case.

20. The resentencing hearing was conducted by the trial court and the two were sentenced to 20 years.

21. The appellant filed an application seeking leave to appeal out of time. This court considered the application and observed that the appellant’s appeal touched on the legality, and propriety of the sentence passed by the trial court in re-sentencing. See More Ole Sarite V Republic [2021 eKLR.

22. I now proceed to determine the issue in this appeal.

23. Section 333(2) of the Criminal Procedure Code provides that: -“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.”

24. Court’s duty under the section has also 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.”

25. The Court of Appeal inAhamad Abolfathi Mohammed & Another Vs Republic[2018] eKLR has explained and buttressed the duty to take into account the period an accused person had remained in custody in sentencing under Section 333(2) of the Criminal Procedure Code to give real effect of the section in the sentence imposed.

26. Accordingly, Section 333(2) of the CPC pertains to a fair trial.

27. See also Section 137I (2) (a) of the CPC: -(2)"In passing a sentence, the court shall take into account—(a)The period during which the accused person has been in custody;"

Applying the Test 28. The appellant herein was convicted of the offence of robbery with violence contrary to Section 295 as read with Section 296(2) of the Penal Code. The trial court (Hon W Juma) stated as follows: -“……Unfortunately, sentencing is at the discretion of the court, it is not like the court being bound by the high court decision.I have taken into totality the circumstances of the case and the mitigation of the accused.The 2nd accused person (appellant herein) can be of benefit to humanity wherever he can be as preaching can be done anywhere.I sympathize with their families who may never have had hope of seeing the accused persons if sentence of death would have held.In my view, a custodial sentence is the best in the circumstances because I have no basis of treating that robbery as a petty theft case.The accused have not served jail for 2 years and their appeal is through.I sentence them to each serve 20 years’ imprisonment.”

29. The trial magistrate considered the mitigation by the appellant and even expressed sympathy to the family of the appellant had the death sentence been upheld. She was acutely aware that sentencing is at the discretion of the trial court. I do not, therefore, find any injudiciousness on the part of the trial court in passing the sentence. I uphold the sentence.

Of Time Spent in Custody 30. The trial magistrate was also categorical that the accused had not served jail for 2 years and their appeal was through. The trial magistrate had in mind the time spent in custody. A holistic consideration of this matter is that given the nature and commission of the offence, the severe penalty prescribed- read death- and the pronouncements by the magistrate, the 20 years’ imprisonment was quite lenient and took account of Section 333(2) of the CPC. I, therefore, find not any violation of his right. Except, however, for clarity and interest of justice, the sentence herein shall run from the date of conviction upon re-trial ie August 4, 2017. It is so ordered.

DATED, SIGNED, AND DELIVERED AT NAROK THROUGH TEAMS APPLICATION, THIS 7TH DAY OF NOVEMBER, 2022F. GIKONYO M...............................................JUDGEIn the presence of:1. Mr. Kasaso – CA2. The appellant3. M/s Torosi for Respondent