REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CRIMINAL DIVISION-MILIMANI

CRIMINAL REVISION NO. E340 OF 2021

ELIZABETH ANDESI...................................................................................APPLICANT   

VERSES

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

RULING

1.  Elizabeth Andesi, the Applicant, was charged and convicted for the offence of committing an indecent act with a child in Kibera Chief Magistrates Court Sexual Offences Cause No. 47 of 2018 and sentenced to serve ten (10) years imprisonment.

2. By an undated application filed herein on the 27^th July 2021, she seeks review of sentence on the ground that the court did not consider the time spent in custody.

3. The application was canvassed through oral submissions. It was urged by the applicant that she has reformed. Ms.  Kibathi, learned counsel for the State submitted that there was no indication that the  period spent in custody by the applicant  was considered despite having prayed that it be considered during her mitigation. She prayed that the period runs from 12^th of June, 2018 when the applicant was placed in custody.

4. This is a case where the applicant unlawfully touched and caused her fingers to penetrate the vagina of  R. H a minor aged nine (9) years which was an indecent act.

5. The power of this court in its revisionary jurisdiction is founded under Section 362 of the Criminal Procedure Code (CPC) which  enacts that:

The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.

6.  Article 165(6) of the Constitution provides that:

The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.

7.  The question begging is whether the court considered time spent in custody? Section 333 (2) of the CPC provides that:

(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.(Emphasis mine)

8.  In the case of Bukenya vs. Uganda (Criminal Appeal No. 17 of 2010) [2012] UGSC 3 (29 January 2013) it was stated that;

“Taking the remand period into account is clearly a mandatory requirement.  As observed above, this Court has on many occasions construed this clause to mean in effect that the period which an accused person spends in lawful custody before completion of the trial, should be taken into account specifically along with other relevant factors before the court pronounces the term to be served.  The three decisions which we have just cited are among many similar decisions of this Court in which we have emphasized the need to apply Clause (8).  It does not mean that taking the remand period into account should be done mathematically such as subtracting that period from the sentence the Court would give.  But it must be considered and that consideration must be noted in the judgement.”

9. The applicant filed written submissions.  In the  pre - sentence notes the trial court did  indicate that it considered the written mitigation filed and proceeded to sentence the applicant to serve ten (10) years imprisonment. As stated, the court did not indicate whether she had spent some period in custody before the sentencing date. The trial court had a legal duty to expressly determine this period and reduce it from the ten (10) year period.

10.   In the case of Osman Mohamed Balagha v Republic [2021] eKLR  Aroni J. noted that ;

“It was not for the accused to remind the trial Court while sentencing to consider the time he spent in custody, the law obligates the court to consider the time the convict was incarcerated before conviction. From the record it appears that the trial court failed to consider the same.

In the high court the issue was not raised and therefore not considered.  The issue is featuring before this court for the first time.

In the spirit of applying substantive justice, being just and fair, it is necessary in view of this court not to punish the Applicant for having not raised the issue with the court earlier but allow him the benefit provided for by the said Section of the Criminal Procedure Code, as stated earlier it behooved the court to have complied.”

11.  In the case of Ahamad Abolfathi Mohammed & Another vs. 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 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 19^th June 2012.”

12.  This omission was an error on the face of the record. It also led to an injustice as the accused had  to benefit from the provisions of Section 333(2) of the CPC above.

13.  The Judiciary Sentencing Policy Guidelines: (under clauses 7.10 and 7.11 thereof provide that:

“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.”

14.  The applicant was arraigned on 12^th June,2018 and was sentenced on 11^th October,2019, I therefore correct the error by directing the sentence to run from the 12^th June, 2018.

15.   It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 21^ST DAY OF MARCH, 2022

L. N. MUTENDE

JUDGE

IN THE PRESENCE OF:

Ms. Ntabo for ODPP

Applicant

Court Assistant – Mutai