' REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT HOMABAY
MISC CRIMINAL APPLICATION NO. E027 OF 2025
REPUBLIC/ODPP.……….....……………………...……….…..APPLICANT/APPELLANT
VERSUS
EDWARD KEKE AGAWA……….………...............................….……..RESPONDENT
RULING
The matter presently before the court is the applicant’s Notice of Motion dated 21.01.2025, wherein he seeks revision of the twenty (20) year custodial sentence imposed upon him in Mbita SRM Criminal Case No. 4 of 2019. The applicant specifically seeks to get the benefit afforded under Section 333(2) of the Criminal Procedure Code, which mandates that time spent in pre-sentence custody be factored into the final sentence.
The application is opposed by learned counsel for the respondent, Ms. Oduor, who submits that this Honourable Court lacks the requisite jurisdiction to entertain the application because the applicant having previously lodged HCCRA No. 22 of 2019, which was dismissed in its entirety on 22.10.2020, cannot now approach the court on revision. Counsel, however, conceded and submitted that the applicant did not raise the issue of the applicability of Section 333(2) of the Criminal Procedure Code in the said appeal. She additionally conceded that there is no indication on the face of the record that the trial court considered the period the applicant spent in custody.
In support of her submissions that the court lacked jurisdiction to entertain an application for revision, post an appeal, counsel referred the court to the decision in BMN v Republic; Petition No. 39 of 2020 [2020] eKLR . In the decision the counsel highlighted the observation by the judge that the court that sat on appeal and that subsequently called upon to consider revision were courts of concurrent jurisdiction, the court asked to revise the sentence by the trial court was devoid of any jurisdiction to consider the matter and that doing so would be tantamount to sitting as an Appellate court on the judgment of the judge that handled the appeal. The court stressed that the law abhors that practice of a judge sitting to review a judgment or decision of another judge of concurrent jurisdiction because, good governance demands that cases be handled procedurally in the right forum by applying the rule of the thumb that superior courts cannot sit in review over decisions of their peers of equal and competent jurisdiction much less those courts higher than themselves
In reply to the position of the prosecution, the applicant stressed that even though there was an appeal that failed, the same did not raise the issue of Section 333(2) in the appeal before the High Court.
Upon perusal of the court record, the court is not in doubt but satisfied of two facts; that the applicant did indeed lodge HCCRA No. 22 of 2019, which was determined on 22.10.2020 and dismissed in its entirety, and, that the trial court and the appellate one never addressed the question whether or not section 333(2) was indeed complied with.
The spirit of section 333(2), CPC, is that remand custody pending trial deprives the accused of his liberty, is thus a way of punishment, that when at the end of the trial and sentence the court convicts and elects to give a custodial sentence, the period spent in custody, pending that ultimate outcome, must be invited to proportionately reduce the sentence imposed. The provision serves to buttress the need for the offender being afforded the benefit of the least severe sentence prescribed and is thus an important cog of the right to a fair hearing. It is a benefit that cannot be taken away merely because the courts that dealt with the matter, before an application for review, did not pick it up and pronounce themselves on the same.
Consequently, merely that a court of concurrent jurisdiction has decided an appeal without addressing the dictate of the Criminal Procedure Code, does not precluded a revision court, both as a matter of law and judicial decorum from revisiting the legality and propriety of the sentence meted by the trial court.
The jurisdiction of this court on revision under sections 362 is to interrogate the correctness, legality or propriety of, as in this case, of the sentence past. The record is clear that the trial court failed to take into account the period spent custody pending trial contrary to the mandatory requirements of the law. Such a sentence cannot pass the test of legality. When it so presents and appears, it cannot be left to stand merely because an appellate court was denied an opportunity to pronounce itself on the matter. To this court, section 333(2) CPC affords the court no discretion to consider the presentence custodial period in its sentence. The provision commands that the period be taken into account with the effect that the period so served is applied to proportionately reduce the custodial sentence imposed.
Having said so, and it being uncontested, but conceded, that the applicant was indeed incarcerated through out his trial, and that the said period was never reckoned with in the sentence, the court revises the sentence imposed by the trial court so that the law is complied with and vested rights not violated. The sentence is revised on terms that it be computed from the 29.01.2019, the day he was arrested and placed into custody.
In the circumstances, the application dated 21.01.2025 is wholly merited and is allowed on the disclosed terms.
>> ><>><>>'
IN THE HIGH COURT OF KENYA AT HOMABAY
MISC CRIMINAL APPLICATION NO. E027 OF 2025
REPUBLIC/ODPP.……….....……………………...……….…..APPLICANT/APPELLANT
VERSUS
EDWARD KEKE AGAWA……….………...............................….……..RESPONDENT
RULING
The matter presently before the court is the applicant’s Notice of Motion dated 21.01.2025, wherein he seeks revision of the twenty (20) year custodial sentence imposed upon him in Mbita SRM Criminal Case No. 4 of 2019. The applicant specifically seeks to get the benefit afforded under Section 333(2) of the Criminal Procedure Code, which mandates that time spent in pre-sentence custody be factored into the final sentence.
The application is opposed by learned counsel for the respondent, Ms. Oduor, who submits that this Honourable Court lacks the requisite jurisdiction to entertain the application because the applicant having previously lodged HCCRA No. 22 of 2019, which was dismissed in its entirety on 22.10.2020, cannot now approach the court on revision. Counsel, however, conceded and submitted that the applicant did not raise the issue of the applicability of Section 333(2) of the Criminal Procedure Code in the said appeal. She additionally conceded that there is no indication on the face of the record that the trial court considered the period the applicant spent in custody.
In support of her submissions that the court lacked jurisdiction to entertain an application for revision, post an appeal, counsel referred the court to the decision in BMN v Republic; Petition No. 39 of 2020 [2020] eKLR . In the decision the counsel highlighted the observation by the judge that the court that sat on appeal and that subsequently called upon to consider revision were courts of concurrent jurisdiction, the court asked to revise the sentence by the trial court was devoid of any jurisdiction to consider the matter and that doing so would be tantamount to sitting as an Appellate court on the judgment of the judge that handled the appeal. The court stressed that the law abhors that practice of a judge sitting to review a judgment or decision of another judge of concurrent jurisdiction because, good governance demands that cases be handled procedurally in the right forum by applying the rule of the thumb that superior courts cannot sit in review over decisions of their peers of equal and competent jurisdiction much less those courts higher than themselves
In reply to the position of the prosecution, the applicant stressed that even though there was an appeal that failed, the same did not raise the issue of Section 333(2) in the appeal before the High Court.
Upon perusal of the court record, the court is not in doubt but satisfied of two facts; that the applicant did indeed lodge HCCRA No. 22 of 2019, which was determined on 22.10.2020 and dismissed in its entirety, and, that the trial court and the appellate one never addressed the question whether or not section 333(2) was indeed complied with.
The spirit of section 333(2), CPC, is that remand custody pending trial deprives the accused of his liberty, is thus a way of punishment, that when at the end of the trial and sentence the court convicts and elects to give a custodial sentence, the period spent in custody, pending that ultimate outcome, must be invited to proportionately reduce the sentence imposed. The provision serves to buttress the need for the offender being afforded the benefit of the least severe sentence prescribed and is thus an important cog of the right to a fair hearing. It is a benefit that cannot be taken away merely because the courts that dealt with the matter, before an application for review, did not pick it up and pronounce themselves on the same.
Consequently, merely that a court of concurrent jurisdiction has decided an appeal without addressing the dictate of the Criminal Procedure Code, does not precluded a revision court, both as a matter of law and judicial decorum from revisiting the legality and propriety of the sentence meted by the trial court.
The jurisdiction of this court on revision under sections 362 is to interrogate the correctness, legality or propriety of, as in this case, of the sentence past. The record is clear that the trial court failed to take into account the period spent custody pending trial contrary to the mandatory requirements of the law. Such a sentence cannot pass the test of legality. When it so presents and appears, it cannot be left to stand merely because an appellate court was denied an opportunity to pronounce itself on the matter. To this court, section 333(2) CPC affords the court no discretion to consider the presentence custodial period in its sentence. The provision commands that the period be taken into account with the effect that the period so served is applied to proportionately reduce the custodial sentence imposed.
Having said so, and it being uncontested, but conceded, that the applicant was indeed incarcerated through out his trial, and that the said period was never reckoned with in the sentence, the court revises the sentence imposed by the trial court so that the law is complied with and vested rights not violated. The sentence is revised on terms that it be computed from the 29.01.2019, the day he was arrested and placed into custody.
In the circumstances, the application dated 21.01.2025 is wholly merited and is allowed on the disclosed terms.
>> ><>><>>'