1.The Applicant was charged in Eldoret High Court Criminal Case No. 32 of 2020 with the offence of murder contrary to Section 203 as read with section 204 of the Penal Code. In the Judgment of H. Omondi J (as she then was) dated 28/12/2021 and delivered on her behalf on 10/02/2022 by Nyakundi J, the Court held that the facts presented did not disclose the offence of murder but proved that of manslaughter and for which she duly convicted the Petitioner. Subsequently, on 11/05/2022, after mitigation, Nyakundi J sentenced the Petitioner to a prison sentence of 6 years.
2.Now before this Court for determination is the Application by way of the Notice of Motion dated 3/08/2022 and brought basically under section 333(2) of the Criminal Procedure Code. Quoted verbatim, the prayers sought by the Petitioner are as follows:
3.The grounds of the application are as set out in the body thereof and the same is supported by the applicant’s affidavit.
4.In the affidavit, the applicant deponed that the sentence meted upon him runs from the date of conviction and he is now praying for the period spent in custody to be factored as part of the sentence as prescribed under section 333(2) of the Criminal Procedure Code, he is remorseful, repentant, reformed and rehabilitated, he has learnt lessons while in custody, and that during his time in prison he has gone through various theological and social programmes.
Hearing of the Application
5.The applicant filed his written submissions on 4/01/2023. When the matter came up in court on the same date, Prosecution Counsel, Ms. Emma Okok opted to submit orally.
6.In his written submissions, the applicant stated that this court has unlimited jurisdiction to grant the prayers sought. He then basically expounded on the matters already set out in his supporting affidavit, particularly, on section 333(2) of the Criminal Procedure aforesaid. When given the opportunity to add any point orally, he reiterated the above matters.
7.In her oral Submissions, Ms Okok submitted that the Petitioner was arraigned on 11/06//2020, he took plea on 19/06/2020, he was admitted to bond on 29/07/2020 and he was then released on cash bail on 30/09/2020. She therefore stated that the Petitioner was in custody from 11/06/2020 to 30/09/2020, a period of about 3 months and a few weeks. She added that the Petitioner was sentenced on 11/05/2022 and agreed that the period the Appellant spent in custody was not taken into account. She therefore conceded to the Petition and agreed that Judgment was read on 10/2/2022 and sentence on 11/05/2022 and that the computation was from the date of conviction, not sentence.
Analysis & Determination
8.The issue that arises for determination is “whether the Applicant’s sentence should be reviewed and the time that he spent in custody before being sentenced be factored under section 333(2) of the Criminal Procedure Code”.
10.A reading of the said provision reveals that at the time of sentencing, the court is required to take into account the period a convict has already spent in custody. Further, the Judiciary Sentencing Guidelines provide as follows;
13.The Applicant prays that the 6 years sentence be computed from the date when he was arrested and which he states to be 1/06/2020. The record does not however clearly confirm this date. I have perused the record and agree with Ms Okok that the Petitioner was arraigned on 11/06//2020, he took plea on 19/06/2020, he was admitted to bond on 29/07/2020 and he was eventually released on cash bail on 30/09/2020. It is therefore true that the time that the Appellant spent in custody was from 11/06/2020 to 30/09/2020, about 3 months and 2 weeks. There is no indication that this period was taken into account.
14.Although sentence was read out on 11/05/2022, the computation was from the date of conviction, which was on 10/02/2022. No additional period spent in custody was therefore omitted.
15.As aforesaid, there is however no indication that the court took into account the period of 3 months and about 2 weeks spent by the applicant in custody before conviction. It would therefore be a miscarriage of justice were this court to ignore the same since it is an express requirement of the law.
16.In the premises, I allow the applicant’s notice of motion dated 3/08/2022 and order as follows: