REG
1. Boniface Otieno Maina, Applicant, was charged and convicted for the offence of Gang Defilement contrary to Section 10 of the Sexual Offences Act. After full trial he was convicted and sentenced to serve fifteen (15) years imprisonment. Through an undated application filed on 11th october,2024, he seeks review of the sentence; and, in particular consideration of the period he spent in remand custody pursuant to section 333(2) of the Criminal Procedure Code.
2. The application is premised on grounds that the Applicant was in pre-sentence detention for a period of four (4) years at the time of being sentenced to life imprisonment by the trial court. Subsequently he appealed to the High Court which revised the sentence to fifteen years.
3. The Applicant swore an affidavit in support of the application where he urged the court to take into account time spent in custody.
4. Section 333(2) of the Criminal Procedure Code 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 the 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 Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR where the Court of Appeal stated as follows 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 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:
“….Presentence report is considered and the time accused has spent in Remand and the nature of the offence. He is sentenced to serve 15 years in jail… …” (Emphasis added).
8. The trial court did pronounce itself on the duration the applicant spent in custody. Section 10 of the Sexual Offences Act provides thus:
Any person who commits the offence of rape or defilement under this Act in association with another or others, or any person who, with common intention, is in the company of another or others who commit the offence of rape or defilement is guilty of an offence termed gang rape and is liable upon conviction to imprisonment for a term of not less than fifteen years but which may be enhanced to imprisonment for life.
9. The sentence meted out by the trial court was the minimum prescribed term that the court would consider; and, in addition to the period spent in custody, it was still legal.
10.The upshot of the above is that the application fails and is dismissed.
11. It is so ordered.