1. The Notice of Motion is brought under Article 22(1) of the Constitution.
2. In his application, he states that he was arrested, charged, tried, convicted and sentenced to serve Three (3) years sentence in jail vide HCCR No. 32 of 2016 at Mombasa on 30/6/23 for the offence of murder after spending a period of 11 months from the date of arrest on 29/7/16 and he was bonded on 6/6/17 , , the application fact which has forced him to file this application under Article 22 (1) of the Constitution 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 grounded upon the annexed affidavit of Mbui Harrison and Article 22 of the constitution.
4. 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.”
5. The requirement in section 333(2) in relation to time spent in custody is repeated in other sections of the law such as Section 137(1) (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;
6.The Court’s duty under, 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.”
7.The importance of and court’s duty under Section 333(2) of the CPC in sentencing has also been buttressed in judicial pronouncements. In 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.
6. 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 m ay 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
7. From the trial court typed proceedings, judgment and sentience, the following relevant dates are discernible, the accused was arraigned in court on 12/8/2024 and was sentenced on 30/6/2018 to serve 10 years imprisonment.
8. Secondly, 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.
9. In the circumstances and taking into account the nature of the offence, the fact that the appellant is a young man and first offender, Imprisonment to run from when he was first arraigned before trial court, that is June 5, 2017.
10. In calculating the 3 years to take into account the period taken when he was arraigned in court 12/8/16 up to when he was granted bond.
DELIVERED, DATED and SIGNED at MOMBASA on this 11th day of July, 2024. Judgment delivered through Microsoft Teams Online Platform.
WENDY KAGENDO MICHENI
JUDGE
In the presence of:-
The Appellant
…MS MAINA………………. for the Respondent.
Court Assistant - …BEBORA……………………..