[2022] KEHC 1354 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAROK

MISC. CRIMINAL PETITION NO. E016 OF 2021

(CORAM: F.M. GIKONYO J.)

(Being a petition for resentencing from the judgment on

sentence in Narok High Court Criminal Case No. 6 of 2017

delivered on 31. 07. 2018 by Hon. Justice J.M. Bwonwonga, J)

ROBERT KIPCHIRCHIR................PETITIONER

-VERSUS-

REPUBLIC......................................RESPONDENT

JUDGMENT

Time spent in custody

[1]. The petitioner has fastened a legal quarrel; that time spent in custody prior to conviction was taken account of in the 10 years’ sentence imposed on him by the High court. This he has stated in an undated application received in court on 08/09/2021, be considered. He has relied on Section 333(2) of the Criminal Procedure Code, Articles 27(1), 159(2) (a) (e) and 165 of the Constitution, Francis Muruatetu & Another Versus Republic. He prays that his sentence be reduced accordingly.

[2]. The petitioner was initially charged with murder contrary to Section 203 as read with 204 of the Penal Code. Following plea bargain negotiations, a plea agreement was reached, and upon being satisfied of the factual basis of the plea agreement, and the competence of the accused to enter a plea agreement under Section 137G of the Criminal Procedure Code (CPC); that the accused was at the time of the agreement of sound mind and had acted voluntarily, the court accepted the plea agreement pursuant of Section 137H of the CPC.

[3]. Consequent thereof, the charge was reduced to, and was charged with manslaughter contrary to Section 202 as read with Section 205 of the Penal Code - to which charge he pleaded guilty, and was convicted on his own plea of guilt. He was then sentenced to serve 10 years’ imprisonment.

[4]. Mr. Karanja for the prosecution opposed the application on the ground that the petitioner should go to the Court of Appeal. He should not come to this court for resentencing. He urged this court to dismiss his petition.

[5]. On 7/12/2021, the petitioner orally submitted that he did not go to the Court of Appeal as he was satisfied with the sentence. He argued that the Court of Appeal takes long time to hear and determine matters. He urged this court to enforce Section 333(2) of the CPC.

ANALYSIS AND DETERMINATION

[6]. The request herein is made under Section 333(2) of the Criminal Procedure Code which 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.’’

Object of the section

[7]. Court’s duty under, and the object of the section have 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.”

[8]. The Court of Appeal in Ahamad Abolfathi Mohammed & Another vs. Republic [2018] eKLR. (see also Bethwel Wilson Kibor vs. Republic [2009] eKLR)has also explained and buttressed the absolute need for the court to give real-time effect of section 333(2) of the Criminal Procedure Code in sentencing. And, that merely stating that you have taken account of time spent in custody is not sufficient if the sentence does not show that the period which an accused has been held in custody prior to being sentenced had been taken into account.

[9]. The section does not, however, state how the time spent in custody should be taken into account, Nonetheless, I suggest some practical ways of doing this, say for instance;

i) where the accused had been in custody from arraignment to throughout the trail, doubt will be avoided by stating that the sentence will run from the date of arraignment; this realization will also help the sentencing officer determine the appropriate sentence; or

ii) where the accused had been in custody for sometimes but released on bond at some later stage or other, the trial court, in determining the appropriate sentence, should indicate categorically that the sentence includes the amount of time so spent.

[10]. The court is acutely aware that outright denial of the benefits of section 333(2) of the CPC opens the accused to real risk of serving a more severe sentence than lawfully prescribed, thus, depriving him of liberty contrary to the law. See Article 29(a) of the Constitution which provides that:

Every person has the right to freedom and security of the person, which includes the right not to be—

(a) deprived of freedom arbitrarily or without just cause;

Jurisdiction

[11]. Accordingly, section 333(2) of the CPC pertains to fair trial, and none adherence thereto may be a violation or denial of a right under the Constitution for which redress may be sought pursuant to Article 23(1) of the Constitution which provides that: -

The High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.

[12]. For completeness, see Article 165(3)(b) of the Constitution that:

Subject to clause (5), the High Court shall have—

(b) jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;

Applying the test

[13]. I have perused the records and it is clear that the Petitioner herein was convicted of the offence of manslaughter under Section 202 as read with Section 205 of the Penal Code in Narok High Court Criminal Case No. 6 of 2017. He was sentenced to serve 10 years’ imprisonment. This court (Bwonwong’a J.) stated as follows: -

“......In the circumstances, I find the appropriate sentence is one of ten years imprisonment under Section 205 of the Penal Code (cap63) laws of Kenya as read with Section 322 (2) of the Criminal Procedure Code (cap 75) laws of Kenya.’’

[14]. The court was categorical that he considered the appropriate sentence to be 10 years in the circumstances of the case. A holistic consideration of this matter and the nature of the offence, and the pronouncements by the court, the applicant has had the advantage of Section 333(2) of the CPC and I do not find any violation of his right. The Application therefore fails. For clarity and interest of justice, the sentence herein shall run from the date of conviction; 31/07/2018. It is so ordered.

DATED, SIGNED AND DELIVERED AT NAROK THIS 23RD DAY OF MARCH, 2022 THROUGH MICROSOFT TEAMS APPLICATION.

...............................

F. M. GIKONYO

JUDGE

In the presence of:

1. The Petitioner

2. Karanja for DPP

3. Mr. Kasaso CA