[2022] KEHC 134 (KLR)

Willy v Republic (Miscellaneous Application E048 of 2021) [2022] KEHC 134 (KLR) (15 February 2022) (Ruling)

Neutral citation: [2022] KEHC 134 (KLR)

Republic of Kenya

In the High Court at Machakos

Miscellaneous Application E048 of 2021

MW Muigai, J

February 15, 2022

Between

Erastus Mwangangi Willy

Applicant

and

Republic

Respondent

Ruling

Notice of Motion 1. The Applicant sought review of custodial sentence pursuant to Section 333 (2) of the Criminal Procedure Code.

2. That he wished to be present during the hearing of this application.

Supporting Affidavit 3. That the Trial Magistrate erred in law and fact by not considering the period I spent in custody as per Section 333 (2) of the Criminal Procedure Code before conviction on 23rd October, 2018.

4. The Applicant from the Court record on 23rd September 2021 sought to amend the application filed, the application was granted. On 19th October 2021, the Applicant confirmed filing of the Amended Application and each party was granted 14 days to file and/or highlight written submissions.

5. On 16th December 2021, the Applicant waived his right to file written submissions and orally urged the Court to consider sentence in light of Section 333(2) Criminal Procedure Code.

Respondent’s Written Submissions 6. The Court of Appeal, on its part, in Bernard Kimani Gacheru –VS- Republic [2002] eKLRrestated that:“It is now settled law, following several authorities by this court and by the High court, that sentence is matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the Appellate Court will not easily interfere with sentence that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if the appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless anyone of the matters states is shown to exist.”

7. In Evans Kyalo –VS- Republic [2020] eKLR Wakiaga J stated thus:“It is therefore clear that those powers are limited to what the statute and the Constitution of Kenya under Article 165 (6) and (7) provides. What this Court is called upon to determine is the legality, correctness or propriety of the sentence given by the Court on the applicant’s application or petition for resentencing. In order to exercise the power, the Court must be satisfied that the trial court acted upon wrong principles or failed to consider some fundamental principles”.

Determination 8. The Court’s mandate herein is to determine application of Section 333(2) CPC in sentence meted by the Trial Court.333. Warrant in case of sentence of imprisonment

(1)A warrant under the hand of the judge or magistrate by whom a person is sentenced to imprisonment, ordering that the sentence shall be carried out in any prison within Kenya, shall be issued by the sentencing judge or magistrate, and shall be full authority to the officer in charge of the prison and to all other persons for carrying into effect the sentence described in the warrant, not being a sentence of death.(2)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.

9. The Judiciary Sentencing Policy Guidelines & Directions Clause 7. 10 provides;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 excessive punishment that is not proportional to the offence committed.

10. This Court associates itself with the holding by the High Court by Hon. G. V. Odunga J in Vincent Sila Jona & 87 Others vs Kenya Prison Service & 2 Others [2021] eKLRwhere a joint petition was filed by 51 Petitioners whose sentences had not taken into account the time spent in remand and in order to enhance fundamental rights and freedoms of Petitioners while upholding the intention of the sentencing Court sought declaration on compliance with Section 333(2) CPC. The Court held as follows;A declaration that Trial Courts are enjoined by Section 333(2) of the Criminal Procedure Code, in imposing sentences, other than sentence of death to take into account of the period spent in custody.A declaration that those who were sentenced in violation of the said section are entitled to have their sentences reviewed by the High Court in order to determine their appropriate sentences.A declaration that Section 333(2) CPC applies to the original sentence as well as sentence imposed during resentencing……….

11. The requirement to comply with Section 333(2) CPC is mandatory in computation of the sentence to be served by the Convict upon sentencing. The requirement is also amplified by the Judiciary Sentencing Policy and thus an integral part of sentencing process to avoid excessive punishment that is not proportional to the offence committed and sentence lawfully prescribed and contrary to Article 29 (a) & Article 50 CoK 2010.

Court RecordCM Court Machakos CR Case 128 of 2018 12. In the instant case, as per the original Court record, the Information/Charge Sheet, the Applicant was charged with manslaughter contrary to Section 202 as read with Section 205 of the Penal Code. The date of apprehension and report to Court was on 27th February 2018 and he remained custody.

13. The Applicant pleaded guilty to the charge but after facts were read to him and he mitigated, the response was not unequivocal and Plea of Not Guilty was entered. The applicant was granted bond of Ksh 100,000/- and he remained in custody. On 24th July 2018, he was released on bond and failed to appear in Court on 26th July 2018. The Court issued warrant of arrest and he was taken into custody and bond was cancelled on 31st July 2018.

14. The Applicant was convicted on 23rd October 2018 when judgment was read out and after mitigation, he was sentenced to serve 6 years imprisonment.

15. In compliance with Section 333(2) Criminal Procedure Code; computation of the sentence ought to include the period the Accused person/Applicant was in custody during hearing and determination of the case before sentence was meted out.

16. The Accused/Applicant was placed in custody on 27th February 2018 and sentenced on 23rd October 2018. The 6 years sentence ought to start running from March 2018 when he was placed in custody to October 2018 when he was sentenced to serve 6 years imprisonment.

17. Whereas the sentencing process and outcome is within the purview of the Trial Court and depends on the circumstances of each case, where mandatory provisions of law were not complied with, this Court shall intervene in exercise of revision under supervisory jurisdiction of the High Court as provided under Article 165 (3) CoK 2010.

18. In Compliance with Section 333(2) Criminal Procedure Code, and taking into account the period he has been in custody. The 6 years imprisonment sentence shall be computed to include the period running from March 2018-October 2018 when he was sentenced to serve 6 years imprisonment.

Disposition1. The Applicant’s Miscellaneous Application is granted as follows;2. Section 333(2) CPC mandates the 6 years imprisonment sentence granted by the Trial Court on 23rd October 2018, served by the Applicant shall be computed to include the period the Applicant was in custody before sentence, to commence from March – October 2018; 8 months prior to the date of judgment and sentence.DELIVERED SIGNED & DATED IN OPEN COURT ON 15thFEBRUARY 2022 (VIRTUAL CONFERENCE)M.W. MUIGAIJUDGE