1.Vide an undated Notice of Motion application, the Applicant, Joel Waiharo Migwi seeks that court reviews the sentence that was meted against him on November 9, 2021 in Makadara Chief Magistrates Criminal Case No 459 of 2020 pursuant to the provisions of Section 333, 362 and 364 of the Criminal Procedure Code.
2.The application is premised on the grounds set out in the undated Supporting Affidavit of the Applicant in which he has deponed that he is a family man, being a husband and a father of three (3) school going children for whose he is their sole breadwinner. The Applicant also avers that he was charged and arraigned at Makadara Law Courts on January 29, 2020, having been charged with the offence of Obtaining by False Pretence contrary to Section 313 of the Penal code vide Criminal Case No 459 of 2020. According to the Applicant, upon going through the trial process, he was found guilty, convicted and sentenced to serve three (3) years imprisonment without an option of a fine. He depones that he is now a changed man having learnt a lot while in prison and as a consequence of the crime. He further avers that he suffers from chest problem and a prolonged stay in prison as likely to lead to an irreversible deterioration of his health due to the unconducive conditions, congestion and risks of infection with Covid-19. He also seeks that the period he spent in custody during his trial to be considered for deduction from his sentence.
3.The application was canvassed through oral submissions. In his submissions, the Applicant submitted that he was in remand for a period of ten (10) months during trial and that since his sentence he has learnt a lot through the trainings he has undergone while in prison. He therefore prayed for a second chance and submitted that he has reformed, he lost his mother while in prison, his father is old and that his daughter is about to join High School.
4.In rejoinder, the Applicant submitted that the reason he has not refunded the complainant was because he has never met or seen him since his arrest. He only admitted to the offence because he had been in custody for a long time.
Analysis and Determination
5.I have considered the application and the submissions made by both parties in support and in opposition thereof. I have also read the trial Court’s record of proceedings and the Judgment of Hon Mwangi, in Makadara Criminal Application No 459 of 2020.
6.In seeking revision of the sentence that was meted against him, the Applicant has invoked this court revisional jurisdiction as provided under Section 362 as read with Section 364 of the Criminal Procedure Code. Section 362 which states as follows:-
7.Apart from citing his social and economic circumstances, the Applicant claims that the trial Magistrate failed to take into consideration the period he had spent in custofy during trial contrary to the provisions of Section 333(2) of the Criminal Procedure Code. Section 333 (2) of the Criminal Procedure Code which the learned trial Magistrate allegedly violated when sentencing the applicant is in the following terms:-
11.It is therefore clear that the foregoing provisions imposes an obligation on the trial court to take into account the period an accused has spent in remand in the determination of an appropriate sentence. Failure to comply with the said provision, renders the subsequent sentence a contravention of the law.
12.In the present case, I have read through the trial court’s record and it shows that before passing sentence, the learned trial Magistrate stated as follows:-
13.From the above statement, it is clear that the learned trial Magistrate considered the period the Applicant had been in custody during the trial. However, he did not specifically direct that the sentence handed down on the Applicant would be computed from the date of his arrest which was on January 27, 2020 considering that the Applicant was in custody doing the entire period of his trial.
14.From the presentence notes, it is my considered view that the sentence was meant to take effect from the date it was pronounced which goes against the text and spirit of the proviso (2) to Section 333 of the Criminal Procedure Code. It is thus evident that the learned trial magistrate erred in law when passing sentence against the Applicant. He committed an error which this court is obligated to correct in exercise of its revisional jurisdiction under Section 362 as read with Section 364 of the Criminal Procedure Code.
15.For the foregoing reason, having established that the Applicant was in lawful custody throughout his trial hence his sentence ought to take effect from the date of his arrest which was on January 27, 2020. The upshot is, that the application partially succeeds in so far as the date of commencement of the Applicant’s sentence is concerned.
16.It is hereby ordered that the Applicant’s sentence of three (3) years to be computed from January 27, 2020.It is so ordered.