(Revision of sentence in S.O. Case No. 142 of 2019 at the Senior Magistrates Court at Shanzu on 12 th April, 2024)
RULING
a. Introduction
1. The applicant has moved the court for a revision of his sentence by computation of his pre-trial custodial period. The applicant was charged, convicted and sentenced to seven (7) years imprisonment, for the offence of Sexual Assault contrary to Section 5 (1) (a) (i) as read with Section 5 (2) of the Sexual Offences Act.
2. The particulars of the offense are that the applicant on the 21 st day of November, 2019 at Jomo Kenyatta Public Beach (Pirates) area, in Kisauni Sub-County, within Mombasa County, intentionally and unlawfully used his fingers to penetrate the vagina of M.R.P a girl-child aged 8 years.
3. As it stands the applicant is currently serving the 7 year imprisonment, which sentence he argues, did not take into account the time he spent in custody during the pendency of the trial before his conviction.
4. In support of his application the applicant has cited Sec 333(2) of the CPC and relied on the authority in Ahamad Abolfathi Mohammed & another vs Republic, Cr. Appeal no. 135 of 2016 to the end that courts are enjoined to take into account in a meaningful way the period a convict was in custody during the pendency of his/her trial prior to conviction.
b. Analysis and Determination
5. I have considered the application, noting that the same is not opposed by the respondent, who failed to submit on the same as at the time of making this determination. Indeed, Article 50 (2) (p) (q) of the COK gives the Court the general power to review the decisions of the subordinate courts:
...
“(2) (q) if convicted, to appeal to, or apply for review by, a higher court as prescribed by law.”
6. Equally, this court’s revisionary jurisdiction is provided for under Section 362 of the Criminal Procedure Code .
“ 362. 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.”
7. In this instance the applicant solely seeks the computation of the time he spent in custody during the pendency of his trial prior to his conviction and the same be factored in his 7-year custodial sentence.
8. Section 333 (2) of the CPC provides that:
(2) Subject to the provisions of Section 38 of the Penal Code 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 .
9. The Judiciary Sentencing Policy Guidelines states that:
“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.”
10. It is not in doubt that Sentencing is at the discretion of the trial court which a revisionary court can only interfere with if the same acted on wrong principle. In this instance, the trial court in its discretion imposed a 7-year custodial sentence, to run from the date of conviction. It was imperative that the period which the applicant was in custody during trial be computed. The trial court having not accorded the applicant the said statutory right, the sentence herein was passed based on wrong principles and is therefore amenable to be interfered with by this court.
11. I have considered the trial court’s proceedings and I note that the applicant was arrested on 21 st November, 2019 and remanded in custody until 14 th July, 2020. A quick arithmetic establishes that the applicant was in custody during the pendency of the trial for a period of 7 months and 23 days, or in other words 236 days.
12. Interestingly, the date of conviction was 23 rd February, 2024. For ease of reference and tabulation I deem it fit, as I do, to revise the date from which the applicant’s sentence is to run to 2 nd July, 2023 having factored in the 236 days already spent in custody.
13. For clarity, and avoidance of doubt, this court shall not disturb the sentence of 7 years as issued by the trial court, but simply the date the same is set to run from.
14. I therefore find merit in the application herein strictly to the extent held hereinabove, which I hereby order that the appellant’s 7-year custodial sentence is revised to run with effect from 2 nd July, 2023.
Orders accordingly.
DATED, SIGNED and DELIVERED at MOMBASA Virtually this…18TH…...day of DECEMBER .………2025.
W.K. MICHENI
JUDGE
IN THE PRESENCE OF;
FOR THE APPLICANT(S).ABSENT DUE TO CONNECTIVTY
FOR THE RESPONDENT.MR NGIRI AND SIRIMA
COURT ASSISTANT BEBORA
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RULING
a. Introduction
1. The applicant has moved the court for a revision of his sentence by computation of his pre-trial custodial period. The applicant was charged, convicted and sentenced to seven (7) years imprisonment, for the offence of Sexual Assault contrary to Section 5 (1) (a) (i) as read with Section 5 (2) of the Sexual Offences Act.
2. The particulars of the offense are that the applicant on the 21 st day of November, 2019 at Jomo Kenyatta Public Beach (Pirates) area, in Kisauni Sub-County, within Mombasa County, intentionally and unlawfully used his fingers to penetrate the vagina of M.R.P a girl-child aged 8 years.
3. As it stands the applicant is currently serving the 7 year imprisonment, which sentence he argues, did not take into account the time he spent in custody during the pendency of the trial before his conviction.
4. In support of his application the applicant has cited Sec 333(2) of the CPC and relied on the authority in Ahamad Abolfathi Mohammed & another vs Republic, Cr. Appeal no. 135 of 2016 to the end that courts are enjoined to take into account in a meaningful way the period a convict was in custody during the pendency of his/her trial prior to conviction.
b. Analysis and Determination
5. I have considered the application, noting that the same is not opposed by the respondent, who failed to submit on the same as at the time of making this determination. Indeed, Article 50 (2) (p) (q) of the COK gives the Court the general power to review the decisions of the subordinate courts:
...
“(2) (q) if convicted, to appeal to, or apply for review by, a higher court as prescribed by law.”
6. Equally, this court’s revisionary jurisdiction is provided for under Section 362 of the Criminal Procedure Code .
“ 362. 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.”
7. In this instance the applicant solely seeks the computation of the time he spent in custody during the pendency of his trial prior to his conviction and the same be factored in his 7-year custodial sentence.
8. Section 333 (2) of the CPC provides that:
(2) Subject to the provisions of Section 38 of the Penal Code 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 .
9. The Judiciary Sentencing Policy Guidelines states that:
“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.”
10. It is not in doubt that Sentencing is at the discretion of the trial court which a revisionary court can only interfere with if the same acted on wrong principle. In this instance, the trial court in its discretion imposed a 7-year custodial sentence, to run from the date of conviction. It was imperative that the period which the applicant was in custody during trial be computed. The trial court having not accorded the applicant the said statutory right, the sentence herein was passed based on wrong principles and is therefore amenable to be interfered with by this court.
11. I have considered the trial court’s proceedings and I note that the applicant was arrested on 21 st November, 2019 and remanded in custody until 14 th July, 2020. A quick arithmetic establishes that the applicant was in custody during the pendency of the trial for a period of 7 months and 23 days, or in other words 236 days.
12. Interestingly, the date of conviction was 23 rd February, 2024. For ease of reference and tabulation I deem it fit, as I do, to revise the date from which the applicant’s sentence is to run to 2 nd July, 2023 having factored in the 236 days already spent in custody.
13. For clarity, and avoidance of doubt, this court shall not disturb the sentence of 7 years as issued by the trial court, but simply the date the same is set to run from.
14. I therefore find merit in the application herein strictly to the extent held hereinabove, which I hereby order that the appellant’s 7-year custodial sentence is revised to run with effect from 2 nd July, 2023.
Orders accordingly.
DATED, SIGNED and DELIVERED at MOMBASA Virtually this…18TH…...day of DECEMBER .………2025.
W.K. MICHENI
JUDGE
IN THE PRESENCE OF;
FOR THE APPLICANT(S).ABSENT DUE TO CONNECTIVTY
FOR THE RESPONDENT.MR NGIRI AND SIRIMA
COURT ASSISTANT BEBORA
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