Nkumum v Republic (Criminal Petition E032 of 2021)  KEHC 16243 (KLR) (14 December 2022) (Judgment)
Neutral citation:  KEHC 16243 (KLR)
Republic of Kenya
Criminal Petition E032 of 2021
F Gikonyo, J
December 14, 2022
Richard Katoni Nkumum
(Being an application from the original conviction and sentence of Hon. Abdul (R.M.) in Narok Criminal Case No. 145 of 2011 on 14/9/2012)
Time spent in custody
In an undated application filed on December 24, 2021, the petitioner sought for review of sentence by taking into account time spent in remand custody. He has founded his application upon articles 2, 10, 19(3), 22(1)(3), 23, 25 (c), 27(1)(2), 28, 29(f), 159(1), 160(1), 165(3), (b), 259 and sixth schedule (article 262) rule 7(1) of the Constitution, section 333(2) of the Criminal Procedure Code and section 38 of the Penal Code.
The petitioner stated that his appeal to this court upheld his conviction and sentence. I have perused the record and I do note communication from Nakuru High court to the effect that he withdrew his appeal. Nevertheless, he was convicted of the offence of defilement contrary to section 8(1) (3) of the Sexual Offences Act No 3 of 2006, and sentenced to serve 20 years’ imprisonment.
The applicant orally submitted in court that he was only seeking time spent in custody to be taken into account in the sentence imposed herein.
Mr Karanja urged this court to call for the trial court record and establish whether the time spent in custody was taken into account.
Analysis And Determination
According to section 333(2) of the Criminal Procedure: -
See also section 137I (2) (a) of the CPC that: -
Court’s duty under, and the object of section 333(2) of the CPC has been explained in the Judiciary Sentencing Policy Guidelines (under clauses 7.10 and 7.11) as follows:
Judicial pronouncements have also buttressed the importance of section 333(2) of the CPC in sentencing. See the Court of Appeal in Ahamad Abolfathi Mohammed & another vs. Republic  eKLR that, courts must give real effect to the section in sentencing; and that merely stating that you have taken account of time spent in custody is not sufficient if the sentence, in light of the overall circumstances of the case, does not show that the period spent in custody prior to sentencing had been taken account of.
Accordingly, failure to give effect the proviso to section 333(2) of the CPC opens the accused to a real risk of serving a more severe sentence than lawfully prescribed or proportional to the offence. Thus, a convicted person who so surfers may therefore, found an action ‘’for redress of a denial, violation, or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights’’ under article 23(1) and 165(3)(b) of the Constitution.
Applying the test
From the trial court typed proceedings, judgment, and sentence, the following relevant dates are discernible; the accused was arraigned in court on February 4, 2011 and was sentenced on September 14, 2012 to serve 20 years’ imprisonment.
The petitioner in his application claims to have preferred an appeal to this court in which his conviction and sentence was affirmed. He did not produce the appeal file or proceedings. Nonetheless, it bears repeating, that the communication from Nakuru High Court shows that the appeal was marked as withdrawn.
But, I note far more fundamental misrepresentation. The appellant misled the court in his application that he was sentenced to serve 10 years’ imprisonment, yet, the record of the trial court show that he was sentenced to serve 20 years’ imprisonment. In the circumstances of this case, I will fall back to the record of the trial court.
The trial court (Hon Z Abdul (RM) Stated as follows: -
The trial court did not indicate whether it took into account time spent in custody when imposing a sentence of 20 years’ imprisonment. And given the object of section 333(2) of the CPC- to prevent a person from serving more severe or excessive sentence than is lawfully prescribed or proportional to the offence- the petitioner did not get the benefit of section 333(2) of the CPC. In consequence thereof, he is entitled to redress.
In the circumstances, the petition succeeds to the extent that the sentence of 20 years’ imprisonment shall run from the date he was first arraigned in court, that is on February 4, 2011.
It is so ordered.
DATED, SIGNED, AND DELIVERED AT NAROK THROUGH MICROSOFT TEAMS ONLINE APPLICATION, THIS 14TH DAY OF DECEMBER, 2022...................................................F. GIKONYO M.JUDGEIn the presence of:1. Petitioner2. Ms. Torosi for DPP3. Mr. Kasaso - CA