Skip to content
JudgmentLUCKY KATHENYA MUTHURI VS The Republic5 min read

LUCKY KATHENYA MUTHURI VS The Republic

High Court at Mombasa High Court · · Wendy Micheni


(ARISING FROM THE SENTENCE  IN  MOMBASA CMMCR 1476 0F 2022  ( HON G. A OLIMO)  ON 12TH AUGUST 2024 )


  1. The Notice of Motion is brought under sections 354 of the CPC  and section  234 OF THE PENAL CODE, ARTICLE 25 (A) (2) OF THE  CONSTITUTION and section 4 (1) and 2) of the PROBATION OFFENDERS ACT.
  2. The Applicant was unrepresented but the gist of his application is 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
  3. The Applicant states that he was arrested, charged, tried, convicted and sentenced to pay a fine of KSH 200,000 and in default to serve a Two(2) years  in prison in count 1 and  a further fine of Ksh 100,000 and in default to serve I year imprisonment term   in count two. This was in Mombasa  CMCR No. 1476 of 2022. He took plea on 12th AUGUST  2022 for the offence of Stealing goods on transit  contrary to section 279c of the penal code.
  4. Even though he was granted bond he was not able to meet the terms since his  family had no means. Eventually someone came through for him on 16th August 2023   after spending a period of  9 months and 10 days in custody, from the date of his arrest before he was bonded 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.
  5. 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   in custody as well as the time spent post sentence to be adequate punishment. He urged for his release to among other things decongest the prison. He sought a non custodial sentence for the remainder of his term since his co accused have paid the fines.
  6. The court called for the lower courts record to consider the legality, propriety and regularity of the proceedings. A sentence review report was also filed.
  7. 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.
  8.   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 court on 19th December 2022. He was not able to afford the bond terms and  he remained in custody until the 16th Day of August 2023 so he was in custody throughout these 9 months of his trial. He was sentenced on 12th August 2024 ,  to serve a consolidated prison term of 3 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 3 years’ imprisonment. The appellant did not therefore, have the advantage of section 333(2) of the CPC.
  3. In the circumstances and taking into account the nature of the offence, and  the mitigating factors captured in the pre sentence review report, the plea is reasonable.
  4.   The pre sentence review report shows that the family and community are receptive.   He also has some health difficulties owing to the road traffic accident. The prison report is also good.     
  5. The court is also guided by the Hon Chief Justice directions on the current RRI to decongest the prisons by reviewing sentences where the circumstances allow.
  6. The victim was also contacted and expressed no fear as the co accused to the Applicant were able to afford the fines and they are out of prison.
  7. The Report recommends that the Applicant be placed on  probation for a period of two years at the Mombasa County Probation Offices.
  8. The court finds that the Application has merit and therefore allows it and reviews the sentences in both counts on and two. In count one he is to serve to The time already spent in custody and then a probation sentence of two years and in count two the time spent in custody and an additional I year probation sentence .  The probation period should run concurrently.
  9. It is so ordered

DELIVERED, DATED and SIGNED at MOMBASA on this 27thday of August, 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

    LUCKY KATHENYA MUTHURI VS The Republic LUCKY KATHENYA MUTHURI VS The Republic