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JudgmentJOHNSTONE MAKAU MWANDIKWA VS The Republic5 min read

JOHNSTONE MAKAU MWANDIKWA VS The Republic

High Court at Mombasa High Court · · Wendy Micheni


(ORIGINATING FROM CR CASE NUMBER 33 0F 2011 IN THE SPM’S COURT AT SHANZU(  Hon MICHIEKA SPM) AND MOMBASA HCCAPP NO 60 0F 2013)


  1. The Notice of Motion is brought under sections 364 (1) (b)and 6 0f the criminal procedure code  and section 4 (2) of the probation of offenders act .
  2. The Applicant states that he was arrested, charged, tried, convicted and sentenced serve a Twenty(20) years  in imprisonment for the offence  of Defilement contrary to section 8 (1) of the sexual offenders act after spending a period of  2 years  and 3 months  from the date of his arrest before he was convicted and sentenced a fact which has forced him to file this application begging this Hon. Court to consider the duration spent in remand custody as part of  his sentence as per provisions of the sentencing policy guidelines paragraph 7; 11 of 2016.
  3. The application is further supported by an affidavit sworn by the applicant. In that affidavit he had asked the court to consider the duration he had served  to be adequate punishment. He urged for his release to among other things decongest the prison. When the application came up for hearing he however urged the court to consider the time spent in remand before he was sentenced.
  4. Article 22 of the Constitution deals with the enforcement of the Bill of Rights. Subsection (1) states that every person has the right to institute court proceedings claiming that a right or a fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.
  5.   Section 333(2) of the Criminal Procedure states: -

“Subject to the provisions of Section 38 of the penal Code (Cap 63) Every sentence shall be deemed to commence form 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 sub section (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.”

  1. The requirement in section 333(2) in relation to time spent in custody is repeated in other sections of the law such as Section 1371 (2) (a) of the CPC that: -

“(2) In passing a sentence, the court shall take into account –

  1. The period during which the accused person has been in custody;
  2. The Court’s duty  and the object of Section 3333(2) of the CPC has been explained in the Judiciary Sentencing Policy Guideline’s (under clauses 7, 10 and 7.11) as follows:

“The provisions to Section 333(2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody if the convicted person had been in custody during the trial. failure to do so impacts on the overall period of detention which may result in an excessive punishment that is not proportional to the offence committed.

In determining the period of imprisonment that should be served by an offender, the court must take into account the period in which the offender, the court must take into account the period in which the offender was held in custody during the trial.”

  1. The importance of and court’s duty under Section 333(2) of the CPC in sentencing has also been buttressed in judicial pronouncements. See the Court of Appeal in Ahamad Abolfathi Mohammed & another vs Republic [2018] eKLR that, courts must give real effect to the section in sentencing; and that merely stating that you have taken account of time spent in custody is not sufficient if the sentence, in light of the overall circumstances of the case, does not show that the period spent in custody prior to sentencing had been taken account of.
  2. Accordingly, failure to take account of time spent in custody as provided in the proviso to section 333(2) of the CPC opens the accused to a real risk of serving a more severe sentence that is, lawfully prescribed or proportional to the offence. and, a convicted person who so suffers may found an action “for redress of a denial, violation, or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights” under Article 23 (1) and 165 (3) (b) of the Constitution.

Applying the test

  1. From the trial court typed proceedings, Judgment and sentence, the following relevant dates are discernible; the accused was arraigned in 2011. He was not able to afford the bond terms and  he remained in custody until the 16th Day of August 2023 when he was sentenced. So he was in custody through out  his trial. He was sentenced   to serve a  prison term of 20 years.
  2. I have looked,  at the record and  there is nothing that shows that the trial court took account of the time spent in custody in passing the sentence of 20 years’ imprisonment. The appellant did not therefore, have the advantage of section 333(2) of the CPC.
  3. The court called for a sentence review report which shows that he has kept in touch with his family and they are willing to accept him back. He is also remorseful and he regrets his actions.
  4. The report shows that victim is an adult with their own families . She relocated and she indicated that she forgave the Applicant who was a friend at the time of the offence. She had no objection to any remedy or assistance to the offender.
  5. The prison authorities reported that he has reformed over the 11 years he has been in custody and he is now well behaved with adopted interpersonal skills. Currently he is engaged as a tailor  making uniforms for both inmates  and wardens.
  6. The report recommended a non custodial period.
  7. I have considered that the time spent in custody was not taken into account in the sentence, the offender has been in custody for over 10 years and he has reformed.        Most importantly the victim forgave him and does not object nor find his release to be a threat and his community is willing to accept him back.  He has also acquired life skills which will help him settle down.
  8. I there find that the objectives of his sentence has been served,.    He has been punished, the victim achieved some justice up to the point they have forgiven him and he has been rehabilitated.
  9. Under the circumstances it is safe to review his sentence.   The application is allowed and the court reviews the sentence  which is hereby reduced to the time already spent in custody plus an additional  probation sentence  for two years   after his release from custody.
  10. It is so ordered

DELIVERED, DATED and SIGNED at MOMBASA on this 27th day of september, 2024. Ruling delivered through Microsoft Teams Online Platform.

WENDY KAGENDO MICHENI

JUDGE

In the presence of:-

The Applicant, present in person

Ms Maina for the state

CA Bebora

    JOHNSTONE MAKAU MWANDIKWA VS The Republic JOHNSTONE MAKAU MWANDIKWA VS The Republic