1.The application for determination is undated and has been brought under Section 326 and 333(2) of the Criminal Procedure Code seeking for orders of taking into account the period the applicant spent in custody during the pendency of the trial the date of arrest being 11th August 2014.
2.The applicant was convicted in Nyeri Criminal Case No. S.O. 33 of 2014 of the charge of rape contrary to Section 3 (1) (a) and (b) (3) of the Sexual Offences Act No. 3 of 2006. He was sentenced to 10 years imprisonment on 13/04/2016. He states that he was not bailed out since the date of arrest and has thus been incarcerated since the date of arrest which period he spent in remand. He urges the court to take into account that period of time he spent in remand.
3.Parties disposed of the application by way of written submissions.
The Applicant’s Submissions
4.The applicant contends that he was arrested on 12/8/2014 and convicted on 16/4/2016 which period he spent in remand custody. He further contends that he has not lodged any appeal to the High Court against conviction or the sentence and neither is he contesting the conviction or the sentence imposed. He only seeks to have the time spent in remand to be taken into account in his sentence pursuant to Section 333(2) of the Criminal Procedure Code.
5.He avers that he is a first offender who has reformed and is remorseful for what transpired. Moreover, he states that the respondent has not opposed his application and as such prays that his application be allowed.
The Respondent’s Submissions.
6.The respondent is not opposed to the application and submits that the trial court never indicated whether the time spent in remand was considered during sentencing. Further, the trial court did not indicate whether the nature of the offence and aggravating circumstances if any were considered during sentencing.
7.The respondent further submits that the case at the trial court was concluded on 13th April 2016 and thus the applicant’s right to appeal has lapsed. Further the applicant was charged in the year 2014 and sentenced in the year 2016 and thus he spent 2 years in custody. However, there is no indication whether the applicant was in custody during the entire trial. Nevertheless, the respondent submits that the applicant is a suitable candidate to benefit from the provisions of Section 333(2) of the Criminal procedure Code. As such, the respondent prays that the sentence to commence from the date the applicant was remanded in custody pending trial.
Issue for determination
8.The main issue for determination is whether the applicant is entitled to benefit from the provisions of the proviso to Section 333(2) of the Criminal Procedure Code.
9.Section 333(2) of the Criminal Procedure Code provides:-
10.It is clear from the above proviso that the law requires courts to take into account the period the convict spent in custody.
11.The provisions of section 333(2) of the Criminal Procedure Code was the subject of the decision in Ahamad Abolfathi Mohammed & Another vs Republic eKLR where the Court of Appeal held that:-
12.The same court in Bethwel Wilson Kibor vs Republic eKLR expressed itself as follows:-
13.According to The Judiciary Sentencing Policy Guidelines:
14.I have perused the lower court record and note that the applicant was arrested on 11th August 2014 and sentenced on 13th April 2016. The court record also shows that in sentencing the trial magistrate took into account the fact that the applicant is a first offender, the mitigating factors and the gravity of the offence and sentenced the applicant to 10 years imprisonment. It is also apparent from the court record that the applicant was in remand during the pendency of the trial. Further, the record reflects that the trial magistrate did not indicate when the sentence was to start running and thus the period the applicant spent in custody was not taken into account.
15.Consequently, I find this application has merit and allow it accordingly.
16.The applicant’s ten (10) year imprisonment sentence shall commence from the date of arrest, the 11th August 2014.
17.It is hereby so ordered.