' The Applicant herein was convicted alongside two others on two counts of the offence of robbery with violence contrary to Section 296 (2) of the Penal Code. He was, upon conviction, sentenced to serve ten years’ imprisonment for each count. The said sentences were to run concurrently. He consequently filed the present Application seeking the following Orders: -
SPENT
THAT the period of 18 months that I spent in remand custody be considered as part of my sentence already served.
THAT I went out for bond only 3 months and later my bond was suspended and the rest of the period I was in remand custody.
THAT I pray to be present during the hearing of this Application or any other order as this Court may deem fit and just.
The Application was supported by the Applicant’s sworn affidavit in which he averred that the period of 18 months that he spent in remand custody while awaiting his trial was not considered as part of the sentence already served.
The Respondent, through Learned Prosecution Counsel Mr. Chirchir , conceded to the Application.
The main issue for my determination is whether the Applicant’s sentence can be reviewed in light of Section 333 (2) of the Criminal Procedure Code.
Article 165 of the Constitution stipulates as follows: -
(6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.
(7) For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.
The Criminal Procedure Code provides for the High Court’s revisionary powers at Section 362 as follows: -
362. Power of High Court to call for records
The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.
The manner in which the above powers are to be exercised is further outlined under Section 364 of the Criminal Procedure Code thus: -
364. Powers of High Court on revision
(1) In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may—
(a) in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358, and may enhance the sentence;
(b) in the case of any other order other than an order of acquittal, alter or reverse the order.
(2) No order under this section shall be made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by an advocate in his own defence:
Provided that this subsection shall not apply to an order made where a subordinate court has failed to pass a sentence which it was required to pass under the written law creating the offence concerned.
The above provisions grant this Court constitutional and statutory authority to call for and examine the records of subordinate courts and satisfy itself as to the correctness, appropriateness and legality of the said decisions.
I have considered the main prayer for inclusion of the period spent in pre-trial incarceration in the sentence term in line with the provisions of Section 333 (2) of the Criminal Procedure Code .
The said provision states thus: -
333. Warrant in case of sentence of imprisonment
(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.
The Judiciary Sentencing Policy Guidelines (2016) state as follows at paragraph 7 thereof as follows: -
7.10. The proviso to section 333 (2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody if the convicted person had been in custody during the trial. Failure to do so impacts on the overall period of detention which may result in an excessive punishment that is not proportional to the offence committed.
7.11. In determining the period of imprisonment that should be served by an offender, the court must take into account the period in which the offender was held in custody during the trial.
The above principles were restated in the case of Bethwel Wilson Kibor vs. Republic [2009] eKLR thus: -
“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. In view of the foregoing we are satisfied that the appellant has been sufficiently punished. We therefore allow this appeal and reduce the sentence to the period that the appellant has already served. He is accordingly to be set free forthwith unless otherwise lawfully held.”
Considering that sentencing is at the discretion of the trial court as emphatically laid out by the High Court at Kwa Zulu Natal in South Africa in the case of S. Vs Nchunu & Another (AR 24/11) [2012] ZAKZPHC6 , I am cautious not to unduly interfere with the trial court’s exercise of its discretion in sentencing, unless there is a clear demonstration that the said court acted on some wrong principles, or misapprehended the facts of a case in exercising its discretion or meted out a sentence that was disproportionate to the offence committed, either by being too excessive or too lenient.
I have perused the trial court record and I note that the said court did not consider the period the Applicant spent in custody while awaiting his trial. The Record shows that the Applicant was arrested on 9 th March 2021. He was granted bond and the same was approved on 16 th March 2021 but subsequently cancelled on 14 th October 2021. He was thereafter sentenced on 15 th September 2022.
I find that the Application has merit and I therefore allow it and direct that the period the Applicant spent in custody while awaiting his trial be included in the final computation of the ten years’ sentence in accordance with the provisions of Section 333 (2) of the Criminal Procedure Code.
Orders accordingly.
'
SPENT
THAT the period of 18 months that I spent in remand custody be considered as part of my sentence already served.
THAT I went out for bond only 3 months and later my bond was suspended and the rest of the period I was in remand custody.
THAT I pray to be present during the hearing of this Application or any other order as this Court may deem fit and just.
The Application was supported by the Applicant’s sworn affidavit in which he averred that the period of 18 months that he spent in remand custody while awaiting his trial was not considered as part of the sentence already served.
The Respondent, through Learned Prosecution Counsel Mr. Chirchir , conceded to the Application.
The main issue for my determination is whether the Applicant’s sentence can be reviewed in light of Section 333 (2) of the Criminal Procedure Code.
Article 165 of the Constitution stipulates as follows: -
(6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.
(7) For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.
The Criminal Procedure Code provides for the High Court’s revisionary powers at Section 362 as follows: -
362. Power of High Court to call for records
The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.
The manner in which the above powers are to be exercised is further outlined under Section 364 of the Criminal Procedure Code thus: -
364. Powers of High Court on revision
(1) In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may—
(a) in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358, and may enhance the sentence;
(b) in the case of any other order other than an order of acquittal, alter or reverse the order.
(2) No order under this section shall be made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by an advocate in his own defence:
Provided that this subsection shall not apply to an order made where a subordinate court has failed to pass a sentence which it was required to pass under the written law creating the offence concerned.
The above provisions grant this Court constitutional and statutory authority to call for and examine the records of subordinate courts and satisfy itself as to the correctness, appropriateness and legality of the said decisions.
I have considered the main prayer for inclusion of the period spent in pre-trial incarceration in the sentence term in line with the provisions of Section 333 (2) of the Criminal Procedure Code .
The said provision states thus: -
333. Warrant in case of sentence of imprisonment
(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.
The Judiciary Sentencing Policy Guidelines (2016) state as follows at paragraph 7 thereof as follows: -
7.10. The proviso to section 333 (2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody if the convicted person had been in custody during the trial. Failure to do so impacts on the overall period of detention which may result in an excessive punishment that is not proportional to the offence committed.
7.11. In determining the period of imprisonment that should be served by an offender, the court must take into account the period in which the offender was held in custody during the trial.
The above principles were restated in the case of Bethwel Wilson Kibor vs. Republic [2009] eKLR thus: -
“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. In view of the foregoing we are satisfied that the appellant has been sufficiently punished. We therefore allow this appeal and reduce the sentence to the period that the appellant has already served. He is accordingly to be set free forthwith unless otherwise lawfully held.”
Considering that sentencing is at the discretion of the trial court as emphatically laid out by the High Court at Kwa Zulu Natal in South Africa in the case of S. Vs Nchunu & Another (AR 24/11) [2012] ZAKZPHC6 , I am cautious not to unduly interfere with the trial court’s exercise of its discretion in sentencing, unless there is a clear demonstration that the said court acted on some wrong principles, or misapprehended the facts of a case in exercising its discretion or meted out a sentence that was disproportionate to the offence committed, either by being too excessive or too lenient.
I have perused the trial court record and I note that the said court did not consider the period the Applicant spent in custody while awaiting his trial. The Record shows that the Applicant was arrested on 9 th March 2021. He was granted bond and the same was approved on 16 th March 2021 but subsequently cancelled on 14 th October 2021. He was thereafter sentenced on 15 th September 2022.
I find that the Application has merit and I therefore allow it and direct that the period the Applicant spent in custody while awaiting his trial be included in the final computation of the ten years’ sentence in accordance with the provisions of Section 333 (2) of the Criminal Procedure Code.
Orders accordingly.
'