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JudgmentMUMBA NJOLE NZIWE VS The Republic4 min read

MUMBA NJOLE NZIWE VS The Republic

High Court at Mombasa High Court · · Wendy Micheni


(ORIGINATING FROM CR CASE NUMBER 3540 0F 2012  ( HON. I. RUGURU  SRM) IN THE CM’S COURT AT MOMBASA)


  1. The Notice of Motion is brought under sections 364 (1) (b), 216,329,333(2) and 362  0f the criminal procedure code, section 296 (2) of the  penal code and Article 25(a) and  c) of the constitution and the sentencing guidelines.
  2. The Applicant states that he was arrested, charged, tried, convicted and sentenced serve a death sentence which was later commuted to life for the offence of  robbery with violence contrary to section 296 (2) of the penal code after spending a period of  3years  from the date of his arrest before he was convicted and sentenced .He filed this application begging this  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 applicant also pointed out that his co accused one Suleiman  Mwachinyoze Mwaludi had his sentence reviewed by the High court , JUSTICE E.K. OGOLA  on 18th March 2021 in MOMBASA CONSTITUTIONAL AND JUDICIAL REVIEW PETITION  NUMBER 79 OF 2018.  He argued that it is discriminative not to accord him the same treatment.
  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.
  3. The court is aware that the dust is yet to settle on the resentencing policy especially in light of the guidelines in The Muruatetu 2  from the Apex court.
  4. This has created led to uncertainty  and difficulty such as is to be seen in this case.
  5. A sentence review report dated 24th July 2024   was prepared by one Wyclif M. Wathome.  It shows that the offender is remorseful, has reformed and the community is not hostile. His immediate family is receptive  and are willing to assist in the  reintergration should he be released.
  6. The victim was a random pick and does not live in the same area so they are not at risk. The victim was robbed of his motorcycle.
  7. The Appllicant has also acquired some carpentry skills which can help him  and also benefit the society.
  8. From the above and in light of the earlier judgment  where the co accused was re sentenced it would be unfair and discriminatory not to treat the applicant in the same manner.
  9. Accordingly I allow the Application and re sentence the Applicant to serve a prison sentence of  15 years from the date of his arraignment just like his co accused was treated in the related manner
  10. It is so ordered.

DELIVERED, DATED and SIGNED at MOMBASA on this 26th day of September, 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

    MUMBA NJOLE NZIWE VS The Republic MUMBA NJOLE NZIWE VS The Republic