Luova v Republic (Criminal Appeal E006 of 2020)  KEHC 16500 (KLR) (15 December 2022) (Ruling)
Neutral citation:  KEHC 16500 (KLR)
Republic of Kenya
Criminal Appeal E006 of 2020
RB Ngetich, J
December 15, 2022
1.The appellant herein Nickson Luova was charged with 2 counts:Count 1.Defilement contrary to section 8 (4) of the Sexual Offences Act no 3 of 2006,Count 2Committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act no 3 of 2006
2.On September 23, 2019, the charge and particulars were read out to the accused who pleaded not guilty. A plea of not guilty was entered and the case proceeded to full trial. At the trial, the prosecution called a total of four (4) witnesses who testified against the appellant. At the close of the prosecution case, the court found that he had a case to answer and put him on his defence under section 211 of the Criminal Procedure Code. He elected to give sworn evidence and called one (1) witness
3.After trial, the appellant was convicted by judgment delivered on November 24, 2020 and sentenced to 10 (ten) years’ imprisonment on the offence of defilement.
4.Aggrieved by the decision of the trial court, the appellant filed a memorandum of appeal on December 2, 2020.
5.On November 29, 2022 when the appeal came up for a mention, the appellant informed the court that he wished to withdraw the appeal and instead urged the court to consider the time spent in remand in computation of the sentence. He informed the court he stayed in remand for 1 year and 2 months.
Analysis and Determination
6.What remains for determination before this court is whether the period of one (1) year two (2) months that the appellant was in remand should be reduced from the sentence imposed.
7.From the charge sheet, the accused was arrested on September 21, 2019. He was granted a bond of Kshs 300, 000/=with a surety of a similar amount. He however could not raise the bond and remained in custody until the conclusion of the trial on November 24, 2020. He was in custody for a period of one (1) year and two (2) months. This is the period the appellant seeks to be included in computing the sentence.
8.Section 333 of the Criminal Procedure Code provides: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 the 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.Further Judiciary Sentencing Policy Guidelines state 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 the overall period of detention which may result in an excessive punishment that is not proportional to the offence committed.
10.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.
11.I have looked at the trial court’s proceedings: On November 24, 2020, the accused in his mitigation asked the court to consider the time spent in custody during the sentencing.
12.The trial magistrate while sentencing stated that he considered mitigation and the fact that the appellant was a first-time offender and proceeded to sentence the accused to 10 years’ imprisonment. It is not however clearly stated that the 1 year and 2 months’ period was reduced from 10 years or was to be reduced from the 10 years
13.I will therefore order/direct that the 1 year 2 months’ period served by appellant in custody be reduced from 10-year imprisonment term imposed.Final orders:-1.Application to include one (1) year two (2) months’ period served in remand while computing sentence is allowed.2.One (1) year two (2) months’ period to be reduced from 10-year sentence imposed against the appellant.
RULING DELIVERED, DATED AND SIGNED VIRTUALLY AT KIAMBU THIS 15TH DAY OF DECEMBER, 2022.RACHEL NGETICHJUDGEIn the Presence of:Kinyua/Martin – Court AssistantsAppellant AbsentMr. Kasyoka for State