Skip to content
JudgmentAHMED MOHAMED OMAR VS The Republic2 min read

AHMED MOHAMED OMAR VS The Republic

High Court at Malindi High Court · · M Thande

 

  1. The Applicant herein was charged in Malindi Criminal Case No. E617 of 2022 with the offence of obtaining money be false pretence contrary to Section 313 of the Penal Code.   Following trial, he was convicted and sentenced to 3 years imprisonment.
  2. The Applicant has now moved to this Court by his Application seeking that the Court reviews his sentence by taking into account the period from the date of his arrest on 13.8.22 to 23.11.23, the date he was sentenced. He also urged the Court to consider the option of a fine for the offence and a non-custodial sentence. 
  3. The Respondent opted not to file any response to the Application. 
  4. The lower court record shows that the Applicant was arrested on 20.9.22. He remained in custody until he was convicted on 26.10.23 and sentenced on 23.11.22. The Applicant’s complaint is that the trial court failed to consider the period spent in custody as part of his sentence as required by the Judiciary sentencing policy guidelines. 
  5. Section 333(2) of the Criminal Procedure Code provides as follows:

Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.

Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.

  1. The proviso to Section 333(2) of the Criminal Procedure Code requires that court while sentencing, do take into account the period an accused person has spent in custody pending trial. In the case of Bethwel Wilson Kibor v Republic [2009] eKLR, the Court of Appeal had this to say about the said proviso:

The incident took place way back in 1999. The appellant was promptly arrested and taken to court.  There were long adjournments due to transfers and/or changes of trial Judges resulting in long incarcerations of the appellant.  By proviso to section 333(2) of Criminal Procedure Code where a person sentenced has been held in custody prior to such sentence, the sentence shall take account of the period spent in custody.  Ombija, J. who sentenced the appellant did not specifically state that he had taken into account the 9 years period that the appellant had been in custody.

The appellant told us that as at 22nd September, 2009 he had been in custody for ten years and one month.  We think that all these incidents ought to have been taken into account in assessing sentence.

  1. Flowing from the above authority, it is clear that a trial court must specifically state that the period spent in custody by an accused person pending trial, has been taken into account when imposing sentence.  
  2. From the record, there is no mention by the trial court that the period that the Applicant had spent in custody pending trial, was taken into account when sentencing him. This is a serious omission on the part of the trial court, as it amounts to non-compliance with an express statutory provision.
  3. In the end and in view of the foregoing, I find that the Application herein is merited and is allowed on terms that the sentence imposed upon the Applicant shall run from 20.9.22, the date of his arrest. 

DATED, SIGNED and DELIVERED in MALINDI this 7th day of February 2025

 

    AHMED MOHAMED OMAR VS The Republic AHMED MOHAMED OMAR VS The Republic