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The Applicant has moved this Court by way of an application seeking revision of sentence pursuant to Section 333(2) of the Criminal Procedure Code. He contends that the trial court failed to take into account the period he spent in custody prior to conviction. The Respondent raised no objection to the application.
The record shows that the Applicant was charged with the offence of grievous harm contrary to section 234 of the Penal Code in Nyamira Criminal Case No. E1264 of 2015 and was convicted and sentenced to thirty (30) years’ imprisonment on 31 st July 2019.
Section 333(2) of the Criminal Procedure Code provides as follows:
“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.”
Clause 2.3.18 of the Sentencing Policy Guidelines similarly obliges courts to consider the period already spent in custody, noting that failure to do so undermines proportionality and may result in an excessive sentence. The Guidelines emphasise that this requirement applies even to offences attracting minimum sentences and to accused persons who remained in custody due to inability to meet bail terms.
The Court of Appeal in Ahmad Abolfathi Mohammed & Another v Republic (2018) eKLR stated:
“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… 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 conviction…”
Similarly, in Bethwel Wilson Kibor v Republic [2009] eKLR , the Court of Appeal reiterated that:
“By proviso to section 333(2) … where a person sentenced has been held in custody prior to such sentence, the sentence shall take account of the period spent in custody.”
In the present case, the trial court record confirms that the Applicant was arrested on 28 th October 2015 and remained in custody continuously until his conviction on 31 st July 2019 . The record does not indicate that the trial court credited the Applicant with the four years and nine months spent in custody.
Having considered the application, the supporting affidavit, the relevant law and authorities, and noting that the Respondent does not oppose the application, the Court is satisfied that the Applicant is entitled to the relief sought.
Disposition
In light of the foregoing, the Court makes the following orders: Pursuant to Section 333(2) of the Criminal Procedure Code, the Applicant’s sentence of thirty (30) years’ imprisonment shall be computed as commencing on 28 th October 2015 , being the date of the Applicant’s arrest and initial detention in custody.
The prison authorities shall effect the recalculation of the Applicant’s sentence in accordance with this ruling.
Orders accordingly.
Appearances
Court Assistant - Hilda
Applicant - Present
For the DPP - Mr. Chirchir
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The Applicant has moved this Court by way of an application seeking revision of sentence pursuant to Section 333(2) of the Criminal Procedure Code. He contends that the trial court failed to take into account the period he spent in custody prior to conviction. The Respondent raised no objection to the application.
The record shows that the Applicant was charged with the offence of grievous harm contrary to section 234 of the Penal Code in Nyamira Criminal Case No. E1264 of 2015 and was convicted and sentenced to thirty (30) years’ imprisonment on 31 st July 2019.
Section 333(2) of the Criminal Procedure Code provides as follows:
“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.”
Clause 2.3.18 of the Sentencing Policy Guidelines similarly obliges courts to consider the period already spent in custody, noting that failure to do so undermines proportionality and may result in an excessive sentence. The Guidelines emphasise that this requirement applies even to offences attracting minimum sentences and to accused persons who remained in custody due to inability to meet bail terms.
The Court of Appeal in Ahmad Abolfathi Mohammed & Another v Republic (2018) eKLR stated:
“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… 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 conviction…”
Similarly, in Bethwel Wilson Kibor v Republic [2009] eKLR , the Court of Appeal reiterated that:
“By proviso to section 333(2) … where a person sentenced has been held in custody prior to such sentence, the sentence shall take account of the period spent in custody.”
In the present case, the trial court record confirms that the Applicant was arrested on 28 th October 2015 and remained in custody continuously until his conviction on 31 st July 2019 . The record does not indicate that the trial court credited the Applicant with the four years and nine months spent in custody.
Having considered the application, the supporting affidavit, the relevant law and authorities, and noting that the Respondent does not oppose the application, the Court is satisfied that the Applicant is entitled to the relief sought.
Disposition
In light of the foregoing, the Court makes the following orders: Pursuant to Section 333(2) of the Criminal Procedure Code, the Applicant’s sentence of thirty (30) years’ imprisonment shall be computed as commencing on 28 th October 2015 , being the date of the Applicant’s arrest and initial detention in custody.
The prison authorities shall effect the recalculation of the Applicant’s sentence in accordance with this ruling.
Orders accordingly.
Appearances
Court Assistant - Hilda
Applicant - Present
For the DPP - Mr. Chirchir
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