1. The Notice of Motion is brought under sections 397,216, and 329 0f the criminal procedure code Articles 25(c)27, 29(d) and 50 (2) (p of the Constitution and sections 203 and 204 of the penal code
2. The Applicant states that he was arrested, charged, tried, convicted and sentenced to serve a Twenty (20) years sentence, in jail vide HCCR No. 325of 2016 at Mombasa on 5th March 2020 for the offence of murder after spending a period of several years from the date of his arrest on. That he was not bonded a fact which has forced him to file this application obegging 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 for 7 years 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.”
6. 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 –
(a) The period during which the accused person has been in custody;
7. 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.”
8. 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.
9. 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
10. From the trial court typed proceedings, Judgment and sentence, the following relevant dates are discernible; the accused was arraigned in court on 14th September 2016 . He was not able to afford the bond terms and so he was in custody throughout his trial. He was sentenced on 5th march 2020 , to serve a prison term of 20 years.
11. 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.
12. In the circumstances and taking into account the nature of the offence, and the mitigating factors captured in the pre sentence report, the plea is reasonable.
13. Accordingly I allow the application to the extent that in calculating the 20 years to be served in prison, the period should run from when he was arraigned in court on 14th September 2016 .
14. It is so ordered
DELIVERED, DATED and SIGNED at MOMBASA on this 31st day of July, 2024. Ruling delivered through Microsoft Teams Online Platform.
WENDY KAGENDO MICHENI
JUDGE
In the presence of:-
The Appellant, present in person
Ms Maina for the state
CA Bebora