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Kivesi v Republic (Criminal Revision E282 of 2022) [2023] KEHC 1704 (KLR) (10 March 2023) (Ruling)
Neutral citation:
[2023] KEHC 1704 (KLR)
Republic of Kenya
Criminal Revision E282 of 2022
OA Sewe, J
March 10, 2023
Between
Joseph Willy Kivesi
Applicant
and
Republic
Respondent
(From the sentence passed in Criminal Case No. 329 of 2019 in the Chief Magistrate’s Court at Voi by Hon. D. Wangechi, PM, on 16 June 2021)
Ruling
1.The applicant herein, Joseph Willy Kivesi, was charged jointly with two others with the offence of trafficking in narcotic drugs contrary to Section 4(a) of the Narcotic Drugs and Psychotropic Substances Control Act, No 4 of 1994. It was alleged that on the March 23, 2019 at Manyatta Trading Centre within Voi Sub-county of Taita Taveta County, they were found trafficking in narcotic drugs namely 1900 stones and 5970 long rolls of cannabis of approximate street value of Kshs 1,176,000/= in motor vehicle Registration No KBU 787B/Trailer ZD8264 in contravention of the said Act.
2.The applicant was ultimately found guilty in a considered Judgment delivered by Hon. Wangeci, PM, on June 16, 2021. He was convicted accordingly and sentenced to a fine of Kshs 3,537,000/= in default to serve one year’s imprisonment on the first limb. In respect of the 2nd limb, the applicant was sentenced to 15 years’ imprisonment. The sentences were to run consecutively from the date of judgment, namely June 16, 2021.
3.Aggrieved by the decision of the lower court, the applicant filed an appeal against both conviction and sentence. The appeal was heard and determined on January 27, 2022 by Hon Mativo, J (as he then was). The learned judge dismissed the appeal on both scores and confirmed the decision of the lower court. Undeterred, the applicant filed the instant application for review on September 15, 2022, praying that the Court be pleased to order that the sentence of 16 years which was imposed on him by the trial court do take into account his pre-trial detention period pursuant to Section 333(2) of the Criminal Procedure Code, Chapter 75 of the Laws of Kenya.
4.The applicant approached the Court under its supervisory jurisdiction under Article 165 of the Constitution, and I entertain no doubt that the Court has jurisdiction to entertain the application, notwithstanding that the applicant’s appeal against sentence has already been dismissed by a court of concurrent jurisdiction. A similar issue arose in Jona & 87 others v Kenya Prison Service & 2 others (Petition 15 of 2020) [2021] KEHC 457 (KLR) (18 January 2021) and was resolved in favour of equality before the law as opposed to procedural technicalities. In particular, Hon Odunga, J (as he then was) held thus:
5.That said, I now turn to the merits of the application, which was hinged on Sub-articles (6) and (7) of Article 165 of the Constitution. They state:(6)The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.(7)For purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may me any order or give any direction it considers appropriate to ensure the fair administration of justice.
6.Accordingly, Section 362 of the Criminal Procedure Code provides that:
7.Further to the foregoing, Section and 364(1)(b) of the Criminal Procedure Code stipulates that:
8.Thus, the record of the lower court was called for pursuant to the aforementioned provisions and upon perusal thereof, it is manifest that, in sentencing the applicant, the trial court was explicit that the imprisonment terms would run consecutively from June 16, 2021 which was the date of judgment, yet the record shows that the applicant was held in custody for some time before his release on bond on June 12, 2019. In this regard, Section 333(2) of the Criminal Procedure Code is explicit that:
9.In the same vein The Judiciary Sentencing Policy Guidelines provide thus at Paragraph 7.10: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 on the overall period of detention which may result in an excessive punishment that is not proportional to the offence committed. 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.
10.The Court of appeal had occasion to consider the import of Section 333(2) in Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR and had the following to say:
11.I note that Mr Sirima, learned counsel for the respondent, conceded that the period of about two and a half months of the applicant’s pre-trial detention ought to be taken into account for purposes of Section 333(2) of the Criminal Procedure Code.
12.In the result, I find merit in the applicant’s application for revision filed herein on September 15, 2022, is hereby allowed and orders granted as hereunder:(a)That the period of pre-trial detention of two months and 20 days between the date of the applicant’s arrest on March 23, 2019 and the date of his release on bond by the lower court on June 12, 2019 be taken into account for purposes of Section 333(2) of the Criminal Procedure Code.(b)In reckoning the applicant’s imprisonment term of 16 years, the period aforementioned be included accordingly.Orders accordingly.
DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 10TH DAY OF MARCH 2023OLGA SEWEJUDGE
