[2023] KEHC 26018 (KLR)

Tioko v Republic (Miscellaneous Criminal Application E129 of 2023) [2023] KEHC 26018 (KLR) (1 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26018 (KLR)

Republic of Kenya

In the High Court at Lodwar

Miscellaneous Criminal Application E129 of 2023

RN Nyakundi, J

December 1, 2023

Between

Aletia Lochuro Tioko

Applicant

and

Republic

Respondent

(Being a resentencing in terms of section 333(2) of the CPC pursuant to the decision dated 31st May, 2023)

Ruling

1. The Applicant was charged, tried on the merits, subsequently convicted and sentenced to 8 years imprisonment for the offence of murder contrary to section 203 as read with section 204 of the penal code. Particulars of the offence are that, on 2nd April, 2020 at Lobei village in Loima, Turkana County murdered Eyanae Galeba Engora.

2. Being aggrieved with the sentence he filed a certificate of urgency accompanied with a notice of motion expressed in the following manner;1)That my lord I was arrested, charged and sentenced to 8 years for an offence of murder contrary to section 203 as read with section 204 of the penal code.2)That my Lordship, the time I spent in custody was not considered during my resentencing hence section 333(2) of the criminal procedure code requires a sentencing court to take into account the period that a convicted person has spent in custody prior to the sentence.3)That I the applicant was in custody since the time of arrest I had not been released on bond upto conviction.4)That the applicant is serving excessive sentence since Article 27 (1) was violated. I pray the honourable high court to include that time I spent in custody in the 8 years imprisonment period relying on the case of Bernard Mulwa Musyoka vs Republice CA 26/01/2018 at Mombasa and Abdul Hussein Gholi Safe and another v Republic 2018eKLR where the court of appeal at Nairobi resentenced the applicant from date of arrest.5)That I believe I will receive equal protection and equal benefit of the law like any other Kenyan whose rights were not violated.

3. In support of the application is an affidavit made on oath and states as follows;1)That I am an adult of sound mind and competent to swear this affidavit.2)That my lord, I apply for the re-compensation of the period of time I spent in custody to be factored in my resentencing since its my constitution right to benefit from the law.3)That the applicant is a first offender.4)That the applicant is remorseful and repentant.5)That I believe I will receive equal protection and equal benefit of the law like any other Kenyan whose rights were not violated.6)That what I have stated herein is true and correct to the best of my knowledge, information and belief.

4. On consideration of the matter and the cause of action as filed by the applicant it is clear what is in issue is the provisions of section 333(2) of the criminal procedure code which reads as follows;(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.

5. According to article 50 (2) (a) of the constitution pretrial detention is an affront with the right to be presumed innocent until proven guilty. It is this doctrine which motivates entrenchment of International and Regional human rights standards in the various treaties and conventions. This is as specified in the Universal Declaration of Human Rights enshrines the rights of everyone charged with a criminal offence to be presumed innocent until proven guilty according to the law (article 11), while Article 9 of the International Covenant on Civil and Political Rights specifies that no one shall be subjected to arbitrary arrest or detention or should be deprived of their liberty except in accordance with the law. It also details the rights of those arrested or detained. These rights are echoed in the European Convention on Human Rights (Article 5), the Inter-American Convention on Human Rights (Article 7) and the African Charter on Human and Peoples’ Rights (Article 6).

6. It is trite law that while sentencing the accused the trial court it should be directed at addressing the judicial purposes of punishment which have been tested over time and include deterrence, prevention, retribution and rehabilitation. With regard to the other factors which have got to be ascertained and applicable to the elective sentence to be adopted are issues on several aggravating and mitigating circumstances. It is also required of the law in section 333(2) of the criminal procedure code to accord credit to the convict for the period spent in remand custody. This is what the court had in mind in Ahamad Abolfathi Mohammed & Another v Republic [2018]eKLR 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 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 provision 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 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"

7. The applicant contends that during the sentencing verdict on 31st May, 2023 a sentence of 8 years imprisonment was pronounced by the trial judge without taking into account the provisions of section 333(2) of the Criminal Procedure Code. The question is whether the circumstances of this case calls for the application of the above statutory provisions to grant credit to the applicant for the period spent in remand custody. The legislature however deliberately incorporated this provision and left it to the court to decide whether the circumstance of any particular case call for a departure from the prescribed provision. On the other hand it is argued that the court is obliged to consider the section to give effect to the period spent in remand custody because that pre-trial detention has a negative impact to the concretized, rights and fundamental freedoms in our constitution. The doctrine of presumption of innocence until the contrary is proved as a right to a fair hearing in article 50 (2) (a) of the constitution is among non-derogable human rights. With regards to the pre-sentence detention, it is common cause that the accused was arrested on 21st April, 2020 and has been in custody until 31st May, 2023 when he was sentenced to 8 years imprisonment. However, this does not mean that the court should overlook all other factors which must be taken into account cumulatively, in exercise of its sentencing discretion. There is no rule of thumb in respect of the calculation of the weight to be given to the time spent by an accused awaiting trial. I echo the principles in the case of Rwabugande Moses versus SCCA25/204 where the court observed inter-alia that it is our view that the taking into account of the period spent on remand by a court is necessary arithmetical. This is because the period is known with certainty and precision: consideration of the remand period should therefore necessarily mean reducing or subtracting that period from the final sentence. That period spent in lawful custody prior to the trial must be specifically credited to an accused.

8. Having considered all the circumstances of this case and the question whether there is merit to grant the remedy in terms of section 333(2) of the CPC in respect of the sentence imposed the committal warrant be amended for the commencement date to read 21st April, 2020.

9. Orders accordingly.

DATED AND SIGNED AT LODWAR THIS 1ST DAY OF DECEMBER, 2023And in the presence of;Mr. Kakoi for the stateAppellant in personR. NYAKUNDIJUDGE