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JudgmentJUSTIN OTWORI OTWORI VS The Republic4 min read

JUSTIN OTWORI OTWORI VS The Republic

High Court at Nyamira High Court · · Wilfrida A. Okwany

  1. This ruling is in respect to the Application dated 11th January 2024 wherein the Applicant moved this court under Section 333 (2) of the Criminal Procedure Code and Articles 19 (2) (3) (a), 20 (1), (2) 21 (1) 25 (c) and 50 (2) of the Constitution for orders that the period of 5 months and 14 days that he spent in remand custody be factored in as part of his sentence.
  2. The Application is supported by the Applicant’s affidavit in which he avers that he was sentenced to serve 7 years imprisonment for the offence of defilement and that he spent 5 months and 14 days in remand while awaiting his trial.
  3. A perusal of the trial court file record reveals that Applicant was arrested on 6th April 2020 and charged with the offence of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act No. 3 of 2006.  I note that the trial court called for a pre-sentencing report and considered the Applicant’s mitigation together with the circumstances of the case before arriving at the sentence of seven (7) years’ imprisonment.
  4. It is trite that the High Court has supervisory jurisdiction over the subordinate courts under Article 165 of the Constitution which 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.

  1. The Constitution also outlines the rights of an accused person to seek revision of their sentence under Article 50 as follows:-

(2) Every accused person has the right to a fair trial, which includes the right—

(q) if convicted, to appeal to, or apply for review by, a higher court as prescribed by law.

  1. Section 333 (2) of the Criminal procedure Code stipulates 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.

  1. The Judiciary Sentencing Policy Guidelines 2016 is also succinct on the provisions of Section 333(2) of the CPC and states as follows:-

7.10. The proviso 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 was held in custody during the trial.

7.11. 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 was held in custody during the trial.

  1. In Ahamad Abolfathi Mohammed & Another vs. Republic [2018] eKLR the Court of Appeal held 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. We find that the first appellate court misdirected itself in that respect and should have directed the appellants’ sentence of imprisonment to run from the date of their arrest on 19th June 2012.”

  1. I note that there is no indication, from the trial record, that the trial court considered the period that the Applicant had spent in remand custody during sentencing. It is my finding that the trial court ought to have considered this period when computing the sentence.
  2. For the above reasons, I find that the instant application is merited and I therefore allow it. I direct that the Applicant’s sentence period shall run from the date of his arrest being 6th April 2020 as shown in the charge sheet.
  3. It is so ordered.

Ruling dated, signed and delivered at Nyamira virtually via Microsoft Teams this 3rd day of October 2024.