1.Samuel Njatha Kamau, Applicant, was charged and convicted for the offence of Attempted Rape and subsequently sentenced to serve seven (7) years imprisonment. Through an application filed herein on 19th November, 2021, he seeks revision and in particular consideration of the period he spent in remand custody pursuant to Section 333 of the Criminal Procedure Code (CPC).
2.The application is brought on the grounds that the appellant was a first offender. That clemency be considered and the court do consider the delayed punishment.
3.The applicant swore an affidavit in support of the application where he deposed that the court did not consider the time he spent in remand.
4.The Respondent through Ms. Chege, learned Counsel opposed the application on grounds that the trial court noted that the applicant absconded trial and that he was not remorseful. That the victim was mentally challenged and the seven (7) years sentence imposed was lenient as the appellant would serve ten (10) years imprisonment, that the 3 years subtracted by the court was also evidence that the court factored the time he spent in custody although the court did not expressly state so.
5.Section 333 of the Criminal Procedure Code provides that:
6.That provision of the law applies in mandatory terms and it is the accused person’s entitlement. The court is required to state that it considered the period spent in remand and it must further deduct that period from the sentence meted out. This was stated in the case of Ahamad Abolfathi Mohammed & Another vs. Republic  eKLR where the Court of Appeal delivered itself that:
7.In the case of Bukenya vs. Uganda (Criminal Appeal No. 17 of 2010)  UGSC 3 the Court of Appeal stated that:
8.In this case the applicant was arraigned on 6th June, 2016, he was released on cash bail on 27th March, 2017. He had been in remand for nine (9)) months before he was released on bail.His bail terms were later cancelled on 18th April, 2019 after he absconded trial, the cash bail was forfeited.
9.The judgement was read on 9th August, 2019 after he spent four (4) more months in remand. The total period to be deducted from the sentence was thirteen (13) months.
11.The minimum sentence for the offence of attempted rape as set out in Section 4 of the Sexual Offences Act is five (5) years imprisonment and the maximum sentence is life imprisonment.
12.The victim was a person who had mental incapacity, the record confirms that the actions affected her as per the victim impact report filed. The witnesses also testified that it was not the first time the act was being committed. And, the court noted that the appellant was not remorseful.
13.In meting out the sentence the court stated that:
14.It is apparent that the trial court did not take into account time spent in custody. Therefore, I set aside the sentence imposed which I substitute with a sentence of 5 years, eleven (11) months imprisonment, after deducting the thirteen (13) months spent in custody.
15.It is so ordered.