- Edward Kigotho Nyaguthi, the Applicant, was charged and convicted for the offence of Preparation to commit a Felony contrary to Section 308(1) of the Penal Code. After full trial he was convicted and sentenced to serve Seven (7) years imprisonment. Through an application dated 6/8/2024, he seeks review of the sentence.
- The application is supported by an affidavit deposed by the Applicant, where he avers that since the conviction and imprisonment, his family young family has suffered as he is the sole bread winner. He calls upon the court to consider the period that was not computed as stipulated in Section 333(2) of the Criminal Procedure Code (CPC).
- The Respondent through Ms. Gladys Kariuki, Senior Principal Prosecution Counsel did not oppose the application.
- 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 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 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 this case the trial court delivered itself thus:
“The court has considered both mit & the fact that indicate A1 has a pending R &V case while A2 has a pending case of B&E into a blng considering all that both are sentenced to 7 yrs imp. R/A 14 days.”
7. Evidently, the trial court did not pronounce itself on the duration the Applicant spent in remand custody.
8. Section 308 of the Penal Code provides that:
(1) Any person found armed with any dangerous or offensive weapon in circumstances that indicate that he was so armed with intent to commit any felony is guilty of a felony and is liable to imprisonment of not less than seven years and not more than fifteen years.
9. Time spent in remand custody should have been computed. It was improper for the court to omit the question of consideration of the period the Applicant spent in custody prior to being sentenced.
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 Seven (7) years imprisonment which will be effective from the date of arrest,22/11/2021.
11. It is so ordered.