[2022] KEHC 16192 (KLR)

Republic v Toroni & 2 others (Criminal Case E006 of 2022) [2022] KEHC 16192 (KLR) (9 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16192 (KLR)

Republic of Kenya

In the High Court at Kakamega

Criminal Case E006 of 2022

PJO Otieno, J

December 9, 2022

Between

Republic

Prosecution

and

William Wekhulo Toroni

1st Accused

Florence Wekhulon Toroni

2nd Accused

Gladys Amanya Wakhulo

3rd Accused

Ruling

1. In this application, the request by the applicant, currently serving a sentence of 30 years imprisonment imposed by the court of appeal, is that he be accorded the statutory benefit vested by the provisions of section 333(2) of the Criminal Procedure Code.

2. That provision reads;“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.”It is to be noted, that at trial the applicant was condemned to suffer death which sentence was set aside on appeal and an imprison sentence substituted therefore.

3. In coming to the said sentence, the court of appeal said:“The sentence of death is set aside and in substitution thereof the appellants are sentenced to 30 years imprisonment each with effect from July 31, 2015 when they were sentenced.”

4. In Ahamed Abolfadhi Mohamed –vs- Republic [2018] eKLR, the court of appeal did observe that the section 333(2) must be given effect when it said;“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 June 19, 2012. ”

5. In the instant case, the Court of Appeal made no allusion on when the time the appellant had serve in custody was taken into account. The question is whether that satisfies the requirements of Section 333(2) of the Criminal Procedure Code? The answer must be an emphatic No.

6. In crafting this ruling, I have perused the record at trial and noted that the applicant was granted bond of Kshs.500,000 with one surety in the like sum. There is a bond executed by the applicant on the September 19, 2012. The charge sheet filed in court on the October 6, 2009 and the evidence on record show that the applicant was arrested on September 28, 2009. I compute the period served by the applicant in custody pending hearing was a period of 3 years less 9 days. That is the period the prison authorities must reckon with and deduct from the period of 30 years, while computing the aggregate period to be served by the applicant.

7. Accordingly, the sentence of 30 years imposed by the court of appeal, shall in compliance with the proviso to Section 333(2) of Criminal Procedure Code, shall be computed by taking into account and deducting the period between September 29, 2009 and September 19, 2012, when the applicant was incarcerated pending trial.

8. The application for resentencing is thus allowance to that extent.

DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 9TH DAY OF DECEMBER 2022. PATRICK J. O. OTIENOJUDGEIn the presence of:Applicant present in personMs. Chala for the RespondentCourt Assistant: Polycap Mukabwa