1. Ben Mburu Githae , the Applicant, was charged and convicted for the offence of Incest contrary to Section 3(1) of the Sexual Offences Act; and he was sentenced to serve Six (6) years imprisonment. Through an undated application filed herein he seeks review of the sentence to take into account Section 333(2) of the Criminal Procedure Code .
2. The application is supported by an affidavit deposed by the Applicant, where he avers that following his arrest and arraignment, he spent the entire period of trial in remand custody, a period that was not computed as stipulated in Section 333(2) of the Criminal Procedure Code (CPC).
3. The Respondent through learned prosecution counsel did not oppose the application.
4. Section 333(2) of the CPC provides that:
(2) 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.
5. That provision of the law applies in mandatory terms and it is an accused person’s entitlement. The court is required to state that it considered the period spent in remand and it must further deduct that period from the sentence meted out. This was stated in the case of Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR where the Court of Appeal delivered itself thus:
“The second is the failure by the court to take into account in a meaningful way, the period that the appellants had spent in custody as required by section 333(2) of the Criminal Procedure Code. By dint of section 333(2) of the Criminal Procedure Code, the court was obliged to take into account the period that they had spent in custody before they were sentenced. Although the learned judge stated that he had taken into account the period the appellants had been in custody, he ordered that their sentence shall take effect from the date of their conviction by the trial court. With respect, there is no evidence that the court took into account the period already spent by the appellants in custody. “Taking into account” the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody. It is not enough for the court to merely state that it has taken into account the period already spent in custody and still order the sentence to run from the date of the conviction because that amounts to ignoring altogether the period already spent in custody. It must be remembered that the proviso to section 333(2) of the Criminal Procedure Code was introduced in 2007 to give the court power to include the period already spent in custody in the sentence that it metes out to the accused person...”
6. In the case of Bukenya v Uganda (Criminal Appeal No. 17 of 2010) [2012] UGSC 3 (29 January 2013) the Court of Appeal stated that:
“Taking the remand period into account is clearly a mandatory requirement. As observed above, this Court has on many occasions construed this clause to mean in effect that the period which an accused person spends in lawful custody before completion of the trial, should be taken into account specifically along with other relevant factors before the court pronounces the term to be served. The three decisions which we have just cited are among many similar decisions of this Court in which we have emphasized the need to apply Clause (8). It does not mean that taking the remand period into account should be done mathematically such as subtracting that period from the sentence the Court would give. But it must be considered and that consideration must be noted in the judgement”
7. In this case the trial court delivered itself thus:
“mitigation by the Accused person is duly considered in the light of the fact that he is a first offender. The offence the Accused committed is serious. The court has taken note of the decision in the case of Maingi & 5 Others v Director of Public Prosecutions Petition No. 17 of 2021 (2022) KEHC 13118 (KLR). The court finds that the custodial sentence is the most appropriate herein. The Accused is hereby sentenced to serve six (6) years imprisonment. ”
8. The trial court did not pronounce itself on the duration the applicant spent in remand custody.
9. Time spent in remand custody was with effect from 26/09/2022 up to 05/05/2023, some 8 months, a period that should have been computed. It was improper for the court to remain mum on the question of the period the Applicant spent in custody prior to sentencing.
10. The upshot of the above is that the application which is meritorious is allowed. In the premises, the order of the court is set side and substituted with an order sentencing the Applicant to Six (6) years imprisonment which will be effective from the date of arrest, 26/08/2022.
11. It is so ordered.
2. The application is supported by an affidavit deposed by the Applicant, where he avers that following his arrest and arraignment, he spent the entire period of trial in remand custody, a period that was not computed as stipulated in Section 333(2) of the Criminal Procedure Code (CPC).
3. The Respondent through learned prosecution counsel did not oppose the application.
4. Section 333(2) of the CPC provides that:
(2) 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.
5. That provision of the law applies in mandatory terms and it is an accused person’s entitlement. The court is required to state that it considered the period spent in remand and it must further deduct that period from the sentence meted out. This was stated in the case of Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR where the Court of Appeal delivered itself thus:
“The second is the failure by the court to take into account in a meaningful way, the period that the appellants had spent in custody as required by section 333(2) of the Criminal Procedure Code. By dint of section 333(2) of the Criminal Procedure Code, the court was obliged to take into account the period that they had spent in custody before they were sentenced. Although the learned judge stated that he had taken into account the period the appellants had been in custody, he ordered that their sentence shall take effect from the date of their conviction by the trial court. With respect, there is no evidence that the court took into account the period already spent by the appellants in custody. “Taking into account” the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody. It is not enough for the court to merely state that it has taken into account the period already spent in custody and still order the sentence to run from the date of the conviction because that amounts to ignoring altogether the period already spent in custody. It must be remembered that the proviso to section 333(2) of the Criminal Procedure Code was introduced in 2007 to give the court power to include the period already spent in custody in the sentence that it metes out to the accused person...”
6. In the case of Bukenya v Uganda (Criminal Appeal No. 17 of 2010) [2012] UGSC 3 (29 January 2013) the Court of Appeal stated that:
“Taking the remand period into account is clearly a mandatory requirement. As observed above, this Court has on many occasions construed this clause to mean in effect that the period which an accused person spends in lawful custody before completion of the trial, should be taken into account specifically along with other relevant factors before the court pronounces the term to be served. The three decisions which we have just cited are among many similar decisions of this Court in which we have emphasized the need to apply Clause (8). It does not mean that taking the remand period into account should be done mathematically such as subtracting that period from the sentence the Court would give. But it must be considered and that consideration must be noted in the judgement”
7. In this case the trial court delivered itself thus:
“mitigation by the Accused person is duly considered in the light of the fact that he is a first offender. The offence the Accused committed is serious. The court has taken note of the decision in the case of Maingi & 5 Others v Director of Public Prosecutions Petition No. 17 of 2021 (2022) KEHC 13118 (KLR). The court finds that the custodial sentence is the most appropriate herein. The Accused is hereby sentenced to serve six (6) years imprisonment. ”
8. The trial court did not pronounce itself on the duration the applicant spent in remand custody.
9. Time spent in remand custody was with effect from 26/09/2022 up to 05/05/2023, some 8 months, a period that should have been computed. It was improper for the court to remain mum on the question of the period the Applicant spent in custody prior to sentencing.
10. The upshot of the above is that the application which is meritorious is allowed. In the premises, the order of the court is set side and substituted with an order sentencing the Applicant to Six (6) years imprisonment which will be effective from the date of arrest, 26/08/2022.
11. It is so ordered.