[2021] KEHC 7851 (KLR)
The court found that section 333(2) of the Criminal Procedure Code makes it mandatory for courts to consider the period an accused has spent in custody prior to sentencing. Upon reviewing the appellate court's judgment, the court determined that the issue of pre-sentence custody was not addressed. The court relied...
Source-derived case information.
- Citation
- [2021] KEHC 7851 (KLR)
- Parties
- Appellant: Raphael Nzovu Gowa; Respondent: Director of Public Prosecutions
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Petition 240 of 2018
- Procedural Posture
- Criminal Resentencing / Judgment
- Outcome
- petition allowed in part
- Judges
- DO Ogembo
- Legal Topics
- Resentencing, Computation of Sentence, Pre Sentence Custody, Grievous Harm, Section 333 2 Criminal Procedure Code
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Raphael Nzovu Gowa
Appellant
Director of Public Prosecutions
Respondent
Procedural Posture
Criminal Resentencing / Judgment
Legal Issues
- 1 Whether the period spent in remand custody prior to sentencing should be considered in computing the petitioner.s sentence under section 333(2) of the Criminal Procedure Code.
- 2 Whether the appellate court previously addressed the issue of pre-sentence custody in the petitioner.s case.
Ratio Decidendi
The court found that section 333(2) of the Criminal Procedure Code makes it mandatory for courts to consider the period an accused has spent in custody prior to sentencing. Upon reviewing the appellate court's judgment, the court determined that the issue of pre-sentence custody was not addressed. The court relied on the statutory provision and relevant case law to hold that the petitioner’s sentence should be computed from the date of his arrest, not the date of conviction. Thus, the 12-year sentence is to run from 2nd September, 2014, the date of arrest.
Court Disposition
petition allowed in part
Orders
- The petitioner’s 12-year sentence shall run from 2nd September, 2014, the date of arrest.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
PETITION NO. 240 OF 2018
RAPHAEL NZOVU GOWA..................................PETITIONER
VERSUS
DIRECTOR OF PUBLIC PROSECUTIONS.....RESPONDENT
JUDGMENT ON RESENTENCING
1. The Petitioner herein RAPHAEL NZOVU GOWA was charged with the Offence of Grievous harm contrary to section 234 of the Penal Code.
2. The particulars of the offence were that “on the 31st day of August 2014, at Mikindani area in Changamwe within Mombasa County, unlawfully assaulted and did grievous harm to Bahati Mwaka Mganza.”
3. The Petitioner was found guilty and sentenced to 25 years imprisonment. When he appealed to the High Court, his sentenced was reduced to 12 years imprisonment.
4. The Petitioner is now in this court pursuant to Section 333(2) of the Criminal Procedure Code, seeking for his conviction to be calculated from date of his arrest.
5. Mr. Fedha learned counsel appearing for the State submitted that the Petitioner’s sentence of 12 years is sufficient and the same ought to start running form the time of conviction. Counsel submitted that the Judge of appeal ordered for the sentence to run from 7th July, 2015 being the date when the petitioner was sentenced by the trial court. Counsel prayed this court not to interfere with the appellate court decision or the terms and conditions on when the sentence will start to run.
6. The Petitioner on his part submitted that this court does consider the time he spent in remand to be part of his sentence as a right under the Constitution and section 333(2) of the Criminal Procedure code.
7. I have considered the application, the relevant law herein as well as the submissions by both the petitioner and the respondent. 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.”
8. It is mandatory that the period which an accused has been held in custody prior to being sentenced be taken into account in meting out the sentence. The Prosecution counsel submitted that this issue was discussed by the appellate court. I have had a chance to read the appellate court judgment and I have found out that this issue was not discussed.
9. The Court of Appeal in Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR stated that, “The court while applying this provision held that by dint of section 333(2) of the Criminal Procedure Code, the courts during sentencing ought to take into account the period that they had spent in custody before they were sentenced.”
10. The petitioner was arrested on 2nd September, 2014 and convicted on 7th July, 2015. Therefore, the computation of his 12 years’ sentence shall run from 2nd September, 2014.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS 14TH DAY OF APRIL, 2021
E. K. OGOLA
JUDGE
Judgment delivered via MS Teams in the presence of:
Petitioner in person
Ms. Wanjohi for the DPP
Ms. Peris Court Assistant