[2022] KEHC 16536 (KLR)

Sigei v Republic (Miscellaneous Criminal Application E013 of 2022) [2022] KEHC 16536 (KLR) (16 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16536 (KLR)

Republic of Kenya

In the High Court at Kericho

Miscellaneous Criminal Application E013 of 2022

AN Ongeri, J

December 16, 2022

Between

Dennis Kipkemoi Sigei

Applicant

and

Republic

Respondent

Ruling

1. The applicant Dennis Kipkemoi Sigeiwas sentenced to 10 years imprisonment on September 14, 2021 for the offence of grievous harm contrary to section 234 of the Penal Code.

2. The applicant has now applied to this court for inclusion of the period he was remanded in custody in the computation of the sentence.

3. The proviso of section 333 (2) of the Criminal Procedure Code cap 75 requires that the period a person has been incarcerated be included in the computation of the sentence.Section 333(2) of the Criminal Procedure Code provides;“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.” (emphasis mine)

4. The proviso to section 333 (2) is coached in mandatory terms and therefore courts of law are obligated to take into account the period which an accused has been held in custody prior to being sentenced in computing the period of the sentence.

5. The Court of Appeal in Ahamad Abolfathi Mohammed & another v Republic [2018] eKLR faulted the trial court for failing to take into account in a meaningful way, the period that the appellants had spent in custody as required by section 333(2) ofCriminal Procedure Code. The court held as follows;“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.”

6. In the case of Bethwel Wilson Kibor v Republic [2009] eKLR the Court of Appeal 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.”

7. In the case of Vincent Sila Jona & 87 others v Kenya Prison Service & 2 others [2021] eKLR Odunga, J (as he then was) stated as follows;“It is clear that section 333(2) enjoins the trial court to take into account the period spent in custody where the person sentenced has, prior to such sentence, been held in custody.”

8. This duty is also contained in the Judiciary Sentencing Policy Guidelines (under clauses 7. 10 and 7. 11) which provides as follows;“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.”

9. The accused person was first arraigned in court on June 19, 2020 and he was sentenced on September 14, 2021.

10. In the case of Vincent Sila Jona (supra) the court held that section 333(2) applies to the original sentence as well as the sentence imposed during resentencing.

11. I hereby allow the application by the applicant and I direct that the period of 10 years imprisonment starts to run from June 19, 2020 and not the date he was sentenced. Orders to issue accordingly.

DELIVERED, SIGNED AND DATED AT KERICHO THIS 16TH DAY OF DECEMBER 2022. AN ONGERIJUDGE