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1. Applicant was charged, tried and convicted in Nyamira Criminal Case No. 960 OF 2018 or the offence of robbery with violence contrary to section 296 (2) and was sentenced to serve 20 years imprisonment.
2. Applicant seeks that the sentence be subjected to the provisions of Section 333(2) of the Criminal Procedure Code so that the time he spent in custody can be accounted for.
3. The Respondent did not oppose the application.
Analysis and Determination
4. Section 333(2) of the Criminal Procedure Code 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.
5. Clause 2.3.18 of The Judiciary Sentencing Policy Guidelines provides that Section 333 (2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody. Failure to do so impacts the overall period of detention which may result in a punishment that is not proportionate to the seriousness of the offence committed. This also applies to those who are charged with offences that involve minimum sentences as well as where an accused person has spent time in custody because he or she could not meet the terms of bail or bond.
6. The Court of Appeal in Ahmad Abolfathi Mohammed & Another Criminal Appeal No.135 of 2016 (2018) eKLR held thus:
“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 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.”
7. Similarly in Bethwel Wilson Kibor vs Republic [2009] eKLR, the Court of Appeal held that: -
“By proviso to section 333(2) of the Criminal Procedure Code, where a person sentenced has been held in custody prior to such sentence, the sentence shall take into account of the period spent in custody…”
8. In the present case, the trial court record reveals that the Applicant was arrested on 23rd March 2018 and remained in custody throughout the trial.
9. Accordingly, and in compliance with Section 333(2) of the Criminal Procedure Code and the applicable sentencing policy guidelines, it is hereby ordered that the sentence of twenty (20) years’ imprisonment imposed upon the Applicant shall be computed from 23rd March 2018, being the date of his arrest and commencement of custody.
10. This matter having been finalized, the file is closed
Appearances
Court Assistant - Hilda
Applicant - Present
For the DPP - Mr. Chirchir
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1. Applicant was charged, tried and convicted in Nyamira Criminal Case No. 960 OF 2018 or the offence of robbery with violence contrary to section 296 (2) and was sentenced to serve 20 years imprisonment.
2. Applicant seeks that the sentence be subjected to the provisions of Section 333(2) of the Criminal Procedure Code so that the time he spent in custody can be accounted for.
3. The Respondent did not oppose the application.
Analysis and Determination
4. Section 333(2) of the Criminal Procedure Code 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.
5. Clause 2.3.18 of The Judiciary Sentencing Policy Guidelines provides that Section 333 (2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody. Failure to do so impacts the overall period of detention which may result in a punishment that is not proportionate to the seriousness of the offence committed. This also applies to those who are charged with offences that involve minimum sentences as well as where an accused person has spent time in custody because he or she could not meet the terms of bail or bond.
6. The Court of Appeal in Ahmad Abolfathi Mohammed & Another Criminal Appeal No.135 of 2016 (2018) eKLR held thus:
“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 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.”
7. Similarly in Bethwel Wilson Kibor vs Republic [2009] eKLR, the Court of Appeal held that: -
“By proviso to section 333(2) of the Criminal Procedure Code, where a person sentenced has been held in custody prior to such sentence, the sentence shall take into account of the period spent in custody…”
8. In the present case, the trial court record reveals that the Applicant was arrested on 23rd March 2018 and remained in custody throughout the trial.
9. Accordingly, and in compliance with Section 333(2) of the Criminal Procedure Code and the applicable sentencing policy guidelines, it is hereby ordered that the sentence of twenty (20) years’ imprisonment imposed upon the Applicant shall be computed from 23rd March 2018, being the date of his arrest and commencement of custody.
10. This matter having been finalized, the file is closed
Appearances
Court Assistant - Hilda
Applicant - Present
For the DPP - Mr. Chirchir
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