- The Application before me is twofold. Firstly, it is made pursuant to Section 333(2) of the Criminal Procedure Code. Secondly, I am urged to consider substituting the sentence with a non-custodial one.
- It is the Applicant’s case that the period he spent in remand custody was not taken into account during sentencing yet Section 333(2) of the Criminal Procedure Code obligates that the period be considered. The Applicant has also urged that the sentence be substituted with a non -custodial one.
- The Application brought pursuant to Section 333(2) of the Criminal procedure Code is not opposed. The learned prosecution counsel was however silent on the second prayer for a non-custodial sentence.
- Section 333(2) of the Criminal Procedure Code obligates a court to consider the period spent in remand custody when sentencing the accused. I have perused the record of the lower court and indeed the trial magistrate does not appear to have complied with Section 333(2) of the Criminal Procedure Code as he should have. In the premises and as the application is not opposed prayer 1 of the undated notice of motion filed herein on 8th March, 2024 is allowed and it is ordered that the sentence meted by the trial magistrate should have been ordered to commence from the date of arrest so as to take into account the one (1) month and seventeen (17) days spent in remand custody.
- As for the prayer for a non-custodial sentence, I note that whereas firstly this is not an appeal against sentence; secondly, that the offence with which the accused was convicted and sentenced is a serious offence thirdly, that the injuries inflicted upon the complainant were of a serious nature (grievous harm), the found suitable and imposed sentence was for a term of imprisonment for three (3) years and hence a non-custodial sentence ought to have been considered. The trial magistrate did not indicate why he ignored the pre-sentence Report. The Applicant has now served more than one year and it is also instructive that the Pre-sentence Report had indeed recommended a non-custodial sentence of 18 months probation premised upon the circumstances of the offence and fact that the Applicant was a first offender. The Applicant having already served more than a year of his term, this court is inclined to grant his application to serve the balance of the term on probation. Accordingly, he shall be placed on probation for a period of 18 months as recommended in the Pre-sentence Report.
It is so ordered.
File closed.
JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY ON THIS 27TH DAY OF FEBRUARY, 2025.
E. N. MAINA
JUDGE
27/02/2025
In the presence of:
Ms Nyauncho for the state
Applicant in person (online)
C/A: Geoffrey