Francis v Republic (Criminal Appeal 47 of 2021)  KECA 281 (KLR) (17 March 2023) (Judgment)
Neutral citation:  KECA 281 (KLR)
Republic of Kenya
Criminal Appeal 47 of 2021
AK Murgor, S ole Kantai & PM Gachoka, JJA
March 17, 2023
Samuel Otieno Francis
(An appeal from the Judgment of the High Court of Kenya at Nairobi (J. Wakiaga, J.) dated 30th May 2018 in HC.CR. A No. 64 of 2014)
1.The appellant, Samuel Otieno Francis was charged before the High Court, Nairobi with an offence of murder contrary to section 203 as read with section 204 of the Penal Code. He was convicted of that offence after a trial in a judgment delivered on May 30, 2018 by J Wakiaga, J.
2.Upon conviction of the appellant, the trial Court called for a presentencing report and victim impact statement. Upon consideration of the two reports, the trial Judge sentenced the appellant to 15 years in jail. Aggrieved by the judgement, the appellant filed a notice of appeal dated April 12, 2022 against both the conviction and sentencing.
3.At the hearing, the appellant was represented by Mr Sanjay P Bhansali and Ms Margaret Matiru appeared for the state. Mr Bhansali informed the court that the appellant wished to abandon the appeal against the conviction and challenge the sentence only.
4.In his written submissions dated August 15, 2022 and which he highlighted orally, Mr Bhansali submitted that the trial Judge erred in sentencing as he failed to invoke section 333 (2) of the Criminal Procedure Code by failing to factor the time spent in remand by the appellant in the sentence. He argued that although the Judge had stated in the judgment that he had taken into account, that the appellant had stayed in remand for 4 years, the said period was not deducted from the sentence. The appellant argued that the fact that the judge had indicated that he had taken into account the period spent in custody, but failed to deduct the period, the Judge fell into error.
5.Ms Matiru for the state opposed the appeal. She relied on her written submissions dated January 31, 2023 and which she highlighted orally. She submitted that in the judgment, it was clear that the Judge had addressed his mind to the principles set out in the Judiciary Sentencing Policy. The learned Judge also addressed himself to the oft quoted Supreme Court decision in Francis Karioki Muruatetu & Another v Republic (2017) eKLR, that declared the mandatory nature of death sentence as unconstitutional. She submitted that the period the appellant had spent in custody, had been taken into account by the learned Judge before sentencing.
6.We note that the appeal before us, is confined to the narrow point of whether the period the appellant had spent in custody before sentencing, was taken into account in the sentence that was imposed. In addressing this issue, we note that section 333(2) of the Criminal Procedure Code provide as follows:
7.We also note that the Judiciary Sentencing Policy Guidelines at clause 7.10 and 7.11 provides as follows:
8.The question that arises for determination is the definition of “taking into account the period in which an offender was held in custody during trial.” In other words, should a Judge when imposing a sentence, do a mathematical deduction of the time spent in custody during trial or can a trial Judge consider all the factors and impose a sentence that is just in the circumstances.
9.We note that the appellant’s grievance is that the learned Judge failed to exercise his discretion properly when imposing the 15-year custodial sentence, by failing to take into account the time he had spent in remand. Normally, this court will not interfere with the exercise of discretion by the court appealed from, unless it is demonstrated that the court: acted on wrong principles; ignored material factors; took into account irrelevant considerations; or on the whole that the sentence is manifestly excessive. This approach was adopted in Bernard Kimani Gacheru v Republic, Cr Appeal No 188 of 2000 where this court expressed itself as follows:
10.The question of the applicability of section 333(2) of the Criminal Procedure Code was considered by this Court in Ahamad Abolfathi Mohammed & Another v Republic, Criminal Appeal No 135 of 2016 and the Court stated thus:
11.The same question of taking into account the period spent in remand was also considered in the Supreme Court of Uganda in the case of Bukenya v Uganda (Criminal Appeal No 17 of 2010)  UGSC 3 (January 29, 2013) in which the Court stated thus:
12.The above case of Bukenya v Uganda was applied by DK Kemei J in the case of Michael Nthenge Kisina v Republic, Criminal Revision No E003 of 2020 and we quote with approval his holding, which the Court stated thus:
13.We now turn to the ground raised by the applicant. We note that the appellant was convicted of the offence of murder. The appellant murdered one Boniface Omwawa Mutula. The appellant without any provocation went to the premises where the deceased was running a barber shop and without any provocation stabbed him to death with a knife. On the sentence, the trial Judge stated as follows:
14.The learned judge is very clear in his ruling that, in imposing the 15-year sentence, he had considered, or as it were, taken into account that, the appellant had been in custody for 4 years. Therefore, the argument by the appellant that the period that he was in custody was not taken into account in the sentence flies in the face of the ruling. We hasten to add that the maximum sentence for offence of murder, upon conviction is death. Francis Karioki Muruatetu case (supra) did not abolish the death sentence but declared section 204 of the Penal Code unconstitutional as it had taken away the discretionary power of the court in sentencing. This means that where circumstances justify, accused persons ought to get stiff sentences.
15.In this appeal, we note that, the appellant stabbed an innocent person to death and was lucky to be handed a 15-year sentence. To try to further reduce the sentence by 4 years through judicial craft, is stretching his luck too far. We are satisfied that in imposing the 15 years, the Court took into account the 4 years that the appellant had spent in custody during trial.
16.Consequently, this appeal is without merit and we dismiss the same.
DATED AND DELIVERED AT NAIROBI THIS 17TH DAY OF MARCH, 2023.A. K. MURGOR.......................................JUDGE OF APPEALS. OLE KANTAI.......................................JUDGE OF APPEALM. GACHOKA, CIArb, FCIArb.......................................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR