1. This is the joint application styled petition of Alex Makau Matheka (Makau) and George Kioko Nzioka (Kioko).
2. Makau was charged with stealing stock contrary to section 278 of the Penal Code in Makindu MCCR 371 of 2021. After a full trial, he was convicted and sentenced to 5 years’ imprisonment on 12/01/2023. He took plea on 17/05/2021, was admitted to bond of Ksh. 70,000/= on 16/12/2021 – and a surety was approved. Makau was released on bond. He absconded when matter was coming for defence hearing. The record shows he was present in court on 28/07/2022 but does not bear the explanation of where he had been or why he had not attended court on the two occasions. The surety was discharged. His defence was heard, judgment was delivered on 08/12/2022 and he was sentenced on 12/01/2023.
3. On his part Kioko was charged in the magistrate’s court in Machakos CRC no.21 of 2009 for defilement contrary to section 8(3) of the sexual offences Act. He was convicted and sentenced to 25 years’ imprisonment on 26/10/2011. He had taken plea on 10/07/2009.
4. He filed an appeal – Machakos 17 of 2012. The appeal was heard and judgment was delivered on 25/06/2015 where his sentence was revised to 20 years’ imprisonment.
5. In the proceedings – I see that bond was at some point reviewed to 50,000 but he never left the prison on bond.
6. It is with that background that this Miscellaneous Application styled as a petition has been brought for the revision of sentence within the purview of the provisions of section 333(2) of the Criminal procure Code though the applicants cite it as PC (Penal Code)
7. The proviso to section 333 (2) of the CPC states: -
“provided that where the person sentenced under subsection (1) has prior to such sentence been held in custody, the sentence shall take into account the period spent in custody”
The applicants in their petition seek the following prayers: That section 333(2) of the Criminal Procedure Code is applied to each of their cases; that their sentences be reduced to the time already served in provision, and that each be considered for non-custodial sentence for the remainder of their sentences.
8. For Makau – It is evident from the record that before he was sentenced a Pre-Sentence Report was availed by Probation and After Care Services (PACS) which painted him as a problematic member of the community despite being a 1st offender. He was in custody from 15/5/2021 when he was arrested to 16/12/2021 when he was released on bond – in that regard – that period he spent in custody totals to 214 days.
9. In the judgment by the learned trial court there is nothing to show that the court took into account the 214 days Makau spent in remand custody before he was released on bond. In the circumstances his prayer to have that period taken into consideration is allowed and his sentence of 5 years’ imprisonment should be less 214 days.
10. As to whether he should be given a non-custodial sentence – I did note that he was a first offender however the PACs officer found him not trustworthy because he refused to disclose certain information about himself and the chief whose particulars he gave did not know him. I also read the record and saw that Makau gave two different stories, in his defence, and when he was interviewed by the PACs officer. Evidently that appears to support the position taken by the PACs officer that Makau could not be trusted in a non-custodial sentence.
11. On whether or not his sentence ought to be revised downwards, Makau was a 1st offender, the stolen animals were recovered, the maximum sentence is 14 years’ imprisonment. The court imposed 5 years’ imprisonment. Bearing in mind the trial court’s discretion to impose sentence and taking the cue from Kiwalabye Bernard –vs- Uganda Cr. Appl 143/2001 SC where it was held: The appellate court is not to interfere with the sentence imposed by a trial court unless where that trial court has exercised its discretion in such a way that it results in the sentence imposed to be manifestly excessive or so low as to amount to a miscarriage of justice. Or where the trial court ignores to consider an important matter or circumstance which ought to be considered while passing the sentence, or if the sentence imposed is wrong in principle.
12. The trial court appears to have been swayed by the PACs report pointing out that the accused was a suspect in some other cases yet no evidence was produced before the court for instance of reports to the chief / or the police. If indeed the accused was as notorious as indicated, then the local administration would have heard about him. The court did not also consider that Makau was 1st offender, youthful offender, and the animals were recovered. I am persuaded that this is a case suitable for revision of sentence from five years to three years’ imprisonment.
13. With respect to Kioko – his appeal was heard by this court (Hon Mutende L. J) who revise the sentence from 25 years’ imprisonment to 20 years’ imprisonment. This court would therefore not have the jurisdiction to revise its own sentence and the court already imposed a sentence. In the circumstance the application by Kioko is not tenable and ought to be placed a court superior to this court.
14. In the final analysis the following orders issue:
1) The application by Makau – 1st applicant is allowed in the following terms: -
i. The sentence of 5 years is revised to 3 years’ imprisonment.
ii. The sentence of 3 years’ imprisonment to be served less 214 days the applicant was in remand prison.
2) The application by Kioko, 2nd applicant is not tenable before this court for lack of jurisdiction as this court has already pronounced itself on his sentence. It is accordingly dismissed.
3) Orders accordingly
2. Makau was charged with stealing stock contrary to section 278 of the Penal Code in Makindu MCCR 371 of 2021. After a full trial, he was convicted and sentenced to 5 years’ imprisonment on 12/01/2023. He took plea on 17/05/2021, was admitted to bond of Ksh. 70,000/= on 16/12/2021 – and a surety was approved. Makau was released on bond. He absconded when matter was coming for defence hearing. The record shows he was present in court on 28/07/2022 but does not bear the explanation of where he had been or why he had not attended court on the two occasions. The surety was discharged. His defence was heard, judgment was delivered on 08/12/2022 and he was sentenced on 12/01/2023.
3. On his part Kioko was charged in the magistrate’s court in Machakos CRC no.21 of 2009 for defilement contrary to section 8(3) of the sexual offences Act. He was convicted and sentenced to 25 years’ imprisonment on 26/10/2011. He had taken plea on 10/07/2009.
4. He filed an appeal – Machakos 17 of 2012. The appeal was heard and judgment was delivered on 25/06/2015 where his sentence was revised to 20 years’ imprisonment.
5. In the proceedings – I see that bond was at some point reviewed to 50,000 but he never left the prison on bond.
6. It is with that background that this Miscellaneous Application styled as a petition has been brought for the revision of sentence within the purview of the provisions of section 333(2) of the Criminal procure Code though the applicants cite it as PC (Penal Code)
7. The proviso to section 333 (2) of the CPC states: -
“provided that where the person sentenced under subsection (1) has prior to such sentence been held in custody, the sentence shall take into account the period spent in custody”
The applicants in their petition seek the following prayers: That section 333(2) of the Criminal Procedure Code is applied to each of their cases; that their sentences be reduced to the time already served in provision, and that each be considered for non-custodial sentence for the remainder of their sentences.
8. For Makau – It is evident from the record that before he was sentenced a Pre-Sentence Report was availed by Probation and After Care Services (PACS) which painted him as a problematic member of the community despite being a 1st offender. He was in custody from 15/5/2021 when he was arrested to 16/12/2021 when he was released on bond – in that regard – that period he spent in custody totals to 214 days.
9. In the judgment by the learned trial court there is nothing to show that the court took into account the 214 days Makau spent in remand custody before he was released on bond. In the circumstances his prayer to have that period taken into consideration is allowed and his sentence of 5 years’ imprisonment should be less 214 days.
10. As to whether he should be given a non-custodial sentence – I did note that he was a first offender however the PACs officer found him not trustworthy because he refused to disclose certain information about himself and the chief whose particulars he gave did not know him. I also read the record and saw that Makau gave two different stories, in his defence, and when he was interviewed by the PACs officer. Evidently that appears to support the position taken by the PACs officer that Makau could not be trusted in a non-custodial sentence.
11. On whether or not his sentence ought to be revised downwards, Makau was a 1st offender, the stolen animals were recovered, the maximum sentence is 14 years’ imprisonment. The court imposed 5 years’ imprisonment. Bearing in mind the trial court’s discretion to impose sentence and taking the cue from Kiwalabye Bernard –vs- Uganda Cr. Appl 143/2001 SC where it was held: The appellate court is not to interfere with the sentence imposed by a trial court unless where that trial court has exercised its discretion in such a way that it results in the sentence imposed to be manifestly excessive or so low as to amount to a miscarriage of justice. Or where the trial court ignores to consider an important matter or circumstance which ought to be considered while passing the sentence, or if the sentence imposed is wrong in principle.
12. The trial court appears to have been swayed by the PACs report pointing out that the accused was a suspect in some other cases yet no evidence was produced before the court for instance of reports to the chief / or the police. If indeed the accused was as notorious as indicated, then the local administration would have heard about him. The court did not also consider that Makau was 1st offender, youthful offender, and the animals were recovered. I am persuaded that this is a case suitable for revision of sentence from five years to three years’ imprisonment.
13. With respect to Kioko – his appeal was heard by this court (Hon Mutende L. J) who revise the sentence from 25 years’ imprisonment to 20 years’ imprisonment. This court would therefore not have the jurisdiction to revise its own sentence and the court already imposed a sentence. In the circumstance the application by Kioko is not tenable and ought to be placed a court superior to this court.
14. In the final analysis the following orders issue:
1) The application by Makau – 1st applicant is allowed in the following terms: -
i. The sentence of 5 years is revised to 3 years’ imprisonment.
ii. The sentence of 3 years’ imprisonment to be served less 214 days the applicant was in remand prison.
2) The application by Kioko, 2nd applicant is not tenable before this court for lack of jurisdiction as this court has already pronounced itself on his sentence. It is accordingly dismissed.
3) Orders accordingly