Kiruo v Republic (Petition E009 of 2022)  KEHC 752 (KLR) (26 January 2023) (Ruling)
Neutral citation:  KEHC 752 (KLR)
Republic of Kenya
Petition E009 of 2022
LW Gitari, J
January 26, 2023
Elias Mwenda Kiruo
1.The petitioner herein, vide an undated notice of motion application that was filed before this court on October 24, 2022 sought for following main orders:i)That this honourable court be pleased to allow the petitioner’s petition under section 333(2) of the Criminal Procedure Code (CPC).ii)That this court to specify how time spent in custody should be taken into account.
2.The application is based on the grounds on the face of it and is supported by affidavit of the petitioner that was commissioned on October 24, 2022.
3.The application is not opposed.
4.The application is expressed to have been brought under the provisions of section 333(2) of the Criminal Procedure Code (CPC) and articles 19, 20, 22, 23, 25, 27, 28, 29, 50, 51, 51, 159, and 165 of the Constitution of Kenya.
5.Section 333(2) of the Criminal Procedure Code provides as follows:
6.This position is also contained under clauses 7.10 and 7.11 of the Judiciary Sentencing Policy Guidelines which state:
7.The Court of Appeal in the case of Ahamad Abolfathi Mohammed & another v Republic  eKLR held as follows in this regard:
8.From the trial court’s record, the petitioner was arrested on May 31, 2019. On June 3, 2019, the trial court ordered that he could be released pending trial on a surety bond of Kshs 200,000/= or a similar cash bail. One Francis Kirugo Gaichu of identification number 7721246, the father to the petitioner, applied on June 7, 2019 to stand as a surety for the petitioner on the said bond terms. The said surety application was approved but the petitioner failed to pay the bond amount.
9.Consequently, 5 (five) witnesses in the support of the prosecution’s case testified before the petitioner testified in support of his case on October 22, 2019. The judgment in the matter was delivered on October 30, 2019. The petitioner, while standing his trial, remained in custody from May 31, 2019, when he was arrested, until October 30, 2019 when then trial court delivered the judgment in the matter. The petitioner was then sentenced to 20 years’ imprisonment. The petitioner appealed against both his conviction and sentence, and by a judgment that was delivered on March 4, 2021, the said appeal was dismissed.
10.From the foregoing, it follows that the petitioner spent time in custody from the date of his arrest and throughout his trial. This equates to a total of 5 months that the petitioner spent in prison while undergoing trial. From the provisions of section 333(2) of the Criminal Procedure Code quoted herein above, it follows that the petitioner’s present application has merit.
11.From the foregoing, I opine that the 5 months that the petitioner spent under custody while undergoing trial should have been taken into account by the trial court to proportionately reduce the sentence imposed. As such, the 20 (twenty) years sentence meted against the petitioner should be reduced by five months.I therefore allow the petition. I order that the sentence imposed on the petitioner shall run from May 31, 2019 the time he was remanded in custody to await trial. The deputy registrar to issue an amended committal warrant and serve it on the officer in charge of the prison where the petitioner is serving his sentence.
DATED, SIGNED AND DELIVERED AT CHUKA THIS 26TH DAY OF JANUARY 2023.L W GITARIJUDGE