[2023] KEHC 25241 (KLR)

Omuaka alias Mr Cash v Republic (Criminal Revision E170 of 2022) [2023] KEHC 25241 (KLR) (8 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25241 (KLR)

Republic of Kenya

In the High Court at Machakos

Criminal Revision E170 of 2022

MW Muigai, J

November 8, 2023

Between

Oliver Isaya Omuaka Alias Mr. Cash

Applicant

and

Republic

Respondent

Ruling

Background 1. The accused person was charged with two counts. First count was breaking into a building and committing a felony, second count was stealing.

2. The information that led to the arraignment of the accused person before the court was as follows:Count 1: Breaking into a building and committing a felony contrary to Section 306 (A) of the Penal Code.Particulars of two offences are as follows:1. Oliver Isaya Omuaka alias Mr. Cash 2. Emmanuel Kipsang 3. Nahashan Mweu Musembi: On the night of 5th and 6th day of February,2022 at Global Light Church in Athi River Sub- County within Machakos County, jointly with others not before Court, broke and entered a building namely Global Light Church with an intent to commit a felony there in the name stealing.Count II: Stealing contrary to Section 268 (1) as read with Section 275 of the Penal Code.Particulars of two offences are as follows:Oliver Isaya Omuaka alias Mr. Cash: On the night of 5th and 6th day of February,2022 at Global Light Church in Athi River Sub- County within Machakos County, jointly with others not before Court, you stole assorted goods (as per the attached lists) all valued at Kshs. 1,088,500/= the property of Global Light Church.

3. The charge was read to the accused and the same explained to him and he pleaded not guilty to the offence and a plea of Not Guilty was entered for the accused person (s).

4. The prosecution opened its case and anchored its evidence on six [6] witnesses who gave their sworn testimonies on what transpired.

5. At the close of the prosecution case, the Trial Court vide its Ruling dated 1/8/2022 found that the prosecution had established a prima faciecase to warrant the accused persons to be placed on their defence.

6. Upon being placed on the defence, the accused did not call any witness but testified denying every testimony that was advanced by the prosecutions witnesses.

Trial Court sentencing 7. The Trial Court’s conviction and sentence dated 27/10/2022 considered the provisions of Sections 306 (b) provides for a sentence of up to 7 years and found that a sentence for a period of 4 years is sufficient for Count 1 and for Count II to serve 2 years. Sentences to run concurrently.

The revision 8. Dissatisfied by the judgment on the sentence, the 1st accused person vide a Notice of Motion under Certificate Urgency filed in court on 15th November,2022, brought under Sections 333 (2), 362 and 364 of the Criminal Procedure Code, wherein, the Applicant sought inter alia Orders That:a.The application filed be certified as urgent an a near inter-partes date be issued for the hearing of this application on a priority basis for jurisdictional query for sentence review in CR No. E132/2022 at CMS Mavoko.b.The court has jurisdiction under Section 346 of CPC to correct errors or omissions emanating from any of its decision.c.It is within the Applicant’s Constitutional right under Article 47 and 48 of the Constitution 2010, to fair administratve action and access to justice.d.This court has original jurisdiction to hear any matter falling within its jurisdiction as donated by Article 165 (3) (a), 159 (2) (d) of the Constitution of Kenya.e.The benefit principle of principle justice and proportionality was not taken into consideration since the Applicant was a first offender and thus should have been issued with the least severe sentence.f.The court be pleased and minded by dint of the application of the constitution Article 47 and 48 of fair administration of justice and Article 165 order grant prayers sought herein of which this Honorable can judiciously solve.

9. The application was supported by Supporting Affidavit sworn by Oliver Isaya Omuaka the Applicant herein, wherein he deposed that it is in the interest of fair trial to file this application since he was convicted by CMS Mavoko in CR case No. E132 of 2022 delivered on 27/10/2022 for the offence of breaking into a building and committing a felony contrary to section 306 of the Penal Code & Stealing Contrary to Section 268 (1) of the Penal Code and sentenced to serve 4 years imprisonment.

10. Lamenting that the court is required to exercise its inherent powers in delivering justice to all fairly and equally taking into account sentencing the Trial Court did not take into account the period sent in remand upon conviction and sentencing. He deposed that the Court has powers under Section 361 and 362 of the CPC to look into the same and make appropriate orders. Further the sentence imposed on him is harsh and excessive looking into all the circumstances of the case.

11. The applicant prayed that the court invokes the provision of Article 50 (2) of the constitution, Sections 333 (2) of the CPC and the court tender mercy and justice and be able to review the sentence downward while invoking the principle of natural justice.

12. The matter was canvassed by written submissions.

Submissions The Applicant’s written submissions 13. The Applicant in his submissions filed in court on 7th August,2023 relied on the case of Ahamad Abolfathi Mohammed & Another Vs Republic(2018) eKLR, where court of Appeal appreciated the fact of a period that the Appellants had spent in custody as required by Section 333(2) of the Criminal Procedure Code(CPC).

14. Similarly, Applicant placed credence in the case of Bethwel Wilson Kibor Vs Republic[2009] eKLR, where the court of Appeal digested the import of Section 333 (2) of the CPC.

15. Further, Applicant cited the Judiciary Sentencing Policy Guidelines which is to the effect that:“The proviso to Section 333 (2) of CPC 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”

16. He submitted that this court is empowered by Article 165 (6) of the constitution to review a decision by a subordinate court.

17. Applicant placed reliance on the case of Criminal Revision No. E001 of 2021 at Nyeri Boniface Mugo Maingi Vs Republic (2021) eKLR, where F. Muchemi LJ at Paragraph 18-21 observed that:“18. The applicant was sentenced on 05/07/2017 having spent a period of six (6) months in custody during the pendency of his trial.19. I find that his application under section 333 (2) has merit and it is hereby allowed.20. the applicant will therefore serve fourteen years imprisonment with effect from the date of arrest 11th January,201721. It is hereby ordered.”

18. The applicant averred that the matter has lasted for over sixteen months totaling from trial process and sentence during which time he has been in custody since the arrest. He opines that he has acquired a great deal of rehabilitation, reformation and transformation and most importantly have taken time to reflect on his life and he believes he is more resourceful than before he incarcerated. Contending that he was married prior to his arrest and was in his prime of managing a family but this was cut short by the unfortunate incident that happened. Averring that he was naïve and thus did not comprehend the consequences of his actions.

19. It was the Applicant’s case that court should try to balance since finding an appropriate sentence is not perfect sentence. To buttress this position, he made reliance on the case of S Vs RO and Another 2000 (2) 248 (SCA).

20. Applicant submitted that he has learnt the hard way and paid his debt to the society and urged the court to order for time served as sufficient punishment and wished to be joined with his family and put his ways right as a vessel of change to the society having learnt a lesson.

Respondent’s Submissions 21. The Respondent in its submissions dated 27th July,2023 and filed in court on 31st July,2023, wherein Mr. Mwongera, state counsel relied on Article 50 (2) of the Constitution which states that:“Every accused person has the right to a fair trial, which includes the right—(q)if convicted, to appeal to, or apply for review by, a higher court as prescribed by law”

22. Counsel relied on the Court of Appeal case of Bernard Kimani Gacheru Vs Republic [2002] eKLR, restated that:“It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account, some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.”

23. Further, state counsel relied on the case of Ahamad Abolfathi Mohammed & Another Vs Republic [2018] eKLR, to support his position on what court needs to into account when meting a sentence.

24. Consequently, counsel reiterated the provisions of Sections 306 (a) and 275 of the Penal Code on the two counts under which the Applicant was charged.

25. Contending that the Trial Court factored that indeed the Applicant was in custody for 259 days approximately (8 months 17 days). Opining that Trial Court’s sentence of 4 years imprisonment (count 1) and 2 years imprisonment (count 2) was appropriate in the circumstances.

26. Counsel urged that this application be dismissed in its entirety.

Determination/Analysis 27. I have considered the application herein as well as the submissions by both the applicants and the respondent.

28. Before I can delve into the matter it is worth appreciating the jurisdiction of this court in the exercise of its supervisory powers as provided in the Constitution and statutory provisons.

29. Article 165(6) and (7) of the Constitutionof Kenya 2010 provides as follows: -“(6)the High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial functions but not over a superior court.(7)for purposes of clause (6) the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6) and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.” 30. Section 362 of theCriminal Procedure Code(Cap 75) on the other hand provides as follows: -“362. The High Court may call and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding sentence or order recorded or passed, and as to the regularity of any proceedings of any subordinate court”.

31. The upshot of the above provisions is that the High court is clothed with the wide powers of review and/or revision of the proceedings and decisions of the subordinate court when such decisions were made without legal piety. Since these are criminal proceedings, section 362 of the Criminal Procedure Code was correctly relied upon by the Applicant.

32. The issue that arises for determination is whether the application for revision is merited.

33. 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.”

34. The import of the aforementioned provision is that when the court is meting a sentence, it must take into account prior to the said sentencing the period spent in custody. In my considered view when the court chooses to depart from this provision an explanation should be rendered to that effect.

35. In the present case, the Applicant was arrested on the 31st March,2022 charged, tried and convicted for breaking into a building and committing a felony and on count two stealing contrary to Section 268 (1) as read with Section 275 of the Penal Code and was sentenced to serve four (4) years and two (2) years imprisonment respectively.

36. The Applicant contend that this Honorable Court give orders for the four (4) years sentence to commence from the date of arrest which was 31st March. 2022. The state on the other hand submitted the trial court factored that indeed the Applicant was in custody for 259 days Approximately (8 months, 17 days). According to the state, trial court’s sentence of 4 years’ imprisonment (count 1) and two years’ imprisonment (count 2) was appropriate in the circumstances.

37. I am guided by the court of Appeal decision in Ahamad Abolfathi Mohammed [2018] eKLR, where the Court of Appeal held that:“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. 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. Although the learned judge stated that he had taken into account the period the appellants had been in custody, he ordered that their sentence shall take effect from the date of their conviction by the trial court. With respect, there is no evidence that the court took into account the period already spent by the appellants in custody. “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. It must be remembered that the proviso to section 333(2) 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. ”

38. The same Court in Bethwel Wilson Kibor vs. Republic [2009] eKLR expressed itself 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 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.”

39. The Judiciary Sentencing Policy Guidelines provides;“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. 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.”

40. It is not in contention that the Applicant was arrested on 31st March,2022, sentenced and convicted on 27/10/2022. In my view the period between arrest and conviction is approximately eight (8) months, which the Trial Court ought to have factored in when meting the sentence.

41. It is evident from the record that the Applicant was in custody pending trial for a period of eight (8) months. This period was not taken into account during the sentencing.

42. This Court revises the said sentence to reflect the requirement that sentencing to take into account the period the Applicant was taken into custody during the pendency of trial.

43. I therefore find that this application is meritorious and I hereby allow it by issuing the orders sought herein that; -a.That a sentence for a period of 4 years is sufficient for count I for count II to serve 2 years. Sentence to run concurrently from the 31st March,2022 when the Accused person was arrested.b.The computation of the 4 years sentence shall factor in the 8 months the Applicant was in custody during trial in line with Section 333(2) CPC.It is so ordered.

RULING DATED, SIGNED AND DELIVERED AT MACHAKOS THIS 8TH DAY OF NOVEMBER 2023 (VIRTUAL/PHYSICAL CONFERENCE).M.W. MUIGAIJUDGEIN THE PRESENCE OF:No Appearance - For the ApplicantMr. Mwongera - For the RespondentGeoffrey/Patrick- Court Assistant(s)