1. This is an application for review of sentence by the applicant Issah Athman Gucha by way of an undated Chamber Summons and supported by an affidavit sworn by the Applicant on 24/5/2024. The applicant was tried, convicted and sentenced to serve ten years’ imprisonment for the offence of attempted defilement contrary to section 9(1) and (2) of the Sexual Offences Act (Cap. 63A) Laws of Kenya before the Mombasa Magistrates Court in Sexual Offence Case No. 85 of 2019.
2. The applicant deposes that he was held in remand for eight months during his trial and he prays that this period be taken into account in his sentence.
3. I have considered the application, the grounds in support thereof, the supporting affidavit and the submissions by the applicant. The issue for determination is whether this court should review the sentence to take into account the period of eight months the applicant was in custody during trial.
4. In my understanding, review of sentence may be undertaken under the provisions of Article 50(2)(q) of the Constitution which provides that: -
“Every accused person has the right to a fair trial, which includes the right - if convicted, to appeal to, or apply for review by, a higher Court as prescribed by the law.”
5. In conjunction with that provision, Article 165(6) and (7) of the Constitution which gives the High Court supervisory jurisdiction over subordinate courts can be invoked to call for magistrate’s court file to the High Court for its consideration. It provides as follows:
“(6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.
(7) For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.”
6. It is the applicant’s plea that the time he spent in custody during trial be considered as part of his sentence.
7. On the issue of a sentence of imprisonment factoring in the time spent in remand custody during trial, Section 333 (2) of the CPC provides thus:
"(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..."
8. The Sentencing Policy Guidelines 2023 provide elaboration of this provision as follows:
“2.3.18 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.
2.3.19 Upon determining the period of imprisonment to impose upon an offender, the court must then deduct the period spent in custody in identifying the actual period to be served (see GATS at Part V). This period must be carefully calculated – and courts should make an enquiry particularly with unrepresented offenders – for example, there may be periods served where bail was interrupted and a short remand in custody was followed by a reissuance of bail e.g., where a surety is withdrawn, and a new surety is later found. This calculation must include time spent in police custody.”
9. Explaining this provision of the law, the Court of Appeal in the case of Ahamad Abolfathi Mohammed & another v Republic [2018] eKLR, held that the court should include the period already spent in custody from the time of arrest, in the sentence that it metes out to an accused person.
10. Since the trial court did not order that the time spent in custody during trial be taken into account in the sentence of imprisonment for the applicant, it is only fair and just, and the court orders this this period is taken into account in computing his sentence in line with section 333(2) of the Criminal Procedure Code. It is so ordered. An amended committal warrant shall be signed by the Deputy Registrar to take this period into account.
11. Orders accordingly.
Ruling delivered, dated and signed on the Virtual Platform Teams this 24th day of January 2024.
HON. ANDAYI W. F.
JUDGE
Ruling delivered in the presence of:
The applicant in person in Voi Prison.
Ngiri for the State
Johnson h/b for Etropia: Court assistant.
2. The applicant deposes that he was held in remand for eight months during his trial and he prays that this period be taken into account in his sentence.
3. I have considered the application, the grounds in support thereof, the supporting affidavit and the submissions by the applicant. The issue for determination is whether this court should review the sentence to take into account the period of eight months the applicant was in custody during trial.
4. In my understanding, review of sentence may be undertaken under the provisions of Article 50(2)(q) of the Constitution which provides that: -
“Every accused person has the right to a fair trial, which includes the right - if convicted, to appeal to, or apply for review by, a higher Court as prescribed by the law.”
5. In conjunction with that provision, Article 165(6) and (7) of the Constitution which gives the High Court supervisory jurisdiction over subordinate courts can be invoked to call for magistrate’s court file to the High Court for its consideration. It provides as follows:
“(6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.
(7) For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.”
6. It is the applicant’s plea that the time he spent in custody during trial be considered as part of his sentence.
7. On the issue of a sentence of imprisonment factoring in the time spent in remand custody during trial, Section 333 (2) of the CPC provides thus:
"(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..."
8. The Sentencing Policy Guidelines 2023 provide elaboration of this provision as follows:
“2.3.18 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.
2.3.19 Upon determining the period of imprisonment to impose upon an offender, the court must then deduct the period spent in custody in identifying the actual period to be served (see GATS at Part V). This period must be carefully calculated – and courts should make an enquiry particularly with unrepresented offenders – for example, there may be periods served where bail was interrupted and a short remand in custody was followed by a reissuance of bail e.g., where a surety is withdrawn, and a new surety is later found. This calculation must include time spent in police custody.”
9. Explaining this provision of the law, the Court of Appeal in the case of Ahamad Abolfathi Mohammed & another v Republic [2018] eKLR, held that the court should include the period already spent in custody from the time of arrest, in the sentence that it metes out to an accused person.
10. Since the trial court did not order that the time spent in custody during trial be taken into account in the sentence of imprisonment for the applicant, it is only fair and just, and the court orders this this period is taken into account in computing his sentence in line with section 333(2) of the Criminal Procedure Code. It is so ordered. An amended committal warrant shall be signed by the Deputy Registrar to take this period into account.
11. Orders accordingly.
Ruling delivered, dated and signed on the Virtual Platform Teams this 24th day of January 2024.
HON. ANDAYI W. F.
JUDGE
Ruling delivered in the presence of:
The applicant in person in Voi Prison.
Ngiri for the State
Johnson h/b for Etropia: Court assistant.