1. Ndoro Mwang’ongo the applicant herein, was charged, tried and convicted for the offence of defilement of a boy contrary to section 8 (1) as read with section 8 (2) of the Sexual Offences Act (Cap. 63A) Laws of Kenya. He was sentenced to serve life imprisonment. His appeal to the High Court vide HC Cr. Appeal No. 147 of 2016 was dismissed and the life sentence was affirmed. He avers that he has no pending appeal.
2. He filed this application by way of a Chamber Summons before the Voi High Court but it was subsequently transferred to the Mombasa High Court because the applicant had been tried before the Mombasa Magistrates Court. The application is supported by an affidavit sworn by the applicant Ndoro Mwang’ongo on 23/5/2023 where he has expounded on the grounds in support of the application.
3. The applicant’s prayers are that this court reviews the life sentence and grant him a more lenient sentence and that the reviewed sentence to take into account the pre-trial period he spent in custody. His contention is that while passing sentence the trial court did not take into account the time spent in custody as above. He then prays that upon taking that period into account the court commutes the remainder of his sentence to a non-custodial term of probation.
4. I have considered the application, the grounds in support thereof, the supporting affidavit and the submissions by the applicant. The issue for determination is whether or not the sentence of life imprisonment passed upon the applicant can be reviewed to a lesser term and the remainder commuted to probation.
5. The learned trial magistrate imposed and this court confirmed on appeal the statutorily provided for sentence for the offence of defilement under section 8(1) as read with section 8(2) of the Sexual Offences Act of life imprisonment upon the applicant. The sentence the trial court passed of life imprisonment is the minimum term provided by law for the offence he was convicted. There was no other lesser sentence that the learned trial magistrate or the High Court on appeal would have imposed rather than life imprisonment. So, the prayer that the same be reviewed to a lesser term and eventually he be placed on probation cannot apply.
6. The term of life imprisonment was indefinite. The Court of Appeal has in recent decisions determined that an indefinite term of life imprisonment is unconstitutional (see the cases of Manyeso v Republic [2023] KECA 827 (KLR), Ayako v Republic [2023] KECA 1563 (KLR), and MB v Republic [2024] KECA 324 (KLR). In the cases of in Ayako v Republic (supra), and MB v Republic (supra) the Court of Appeal substituted indeterminate life imprisonment terms with a definite term of 30 years’ imprisonment while in Manyeso (supra), the term was 40 years imprisonment.
7. In consideration of this emerging jurisprudence by the Court of Appeal on life sentence and substitution of indeterminate life sentences with determinate sentences, and in consideration of mitigation given by the applicant, I find that he should benefit from the lesser period of 30 years imprisonment.
8. Consequently, I find and hold that the sentence of life imprisonment imposed by the trial court and confirmed by this court on appeal is determined to be 30 years imprisonment.
9. On the issue of the time spent in remand custody during trial, Section 333 (2) of the CPC provides thus:
"(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..."
10. The Sentencing Policy Guidelines 2023 explain this provision further that:
“2.3.18 Section 333 (2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody. Failure to do so impacts the overall period of detention which may result in a punishment that is not proportionate to the seriousness of the offence committed. This also applies to those who are charged with offences that involve minimum sentences as well as where an accused person has spent time in custody because he or she could not meet the terms of bail or bond.
2.3.19 Upon determining the period of imprisonment to impose upon an offender, the court must then deduct the period spent in custody in identifying the actual period to be served (see GATS at Part V). This period must be carefully calculated – and courts should make an enquiry particularly with unrepresented offenders – for example, there may be periods served where bail was interrupted and a short remand in custody was followed by a reissuance of bail e.g., where a surety is withdrawn, and a new surety is later found. This calculation must include time spent in police custody.”
11. Explaining this provision of the law, the Court of Appeal in the case of Ahamad Abolfathi Mohammed & another v Republic [2018] eKLR, held that the court should include the period already spent in custody from the time of arrest, in the sentence that it metes out to an accused person.
12. Since the trial court did not have opportunity to consider that issue at the time, it follows that it has to be considered by this court having made the indefinite term of life imprisonment to a definite term of 30 years.
13. I have perused the trial court record and observed that the applicant was arrested on 26/11/2014. He remained in custody from the time he took plea, throughout the trial court until his sentencing on 29/2/2016 which is about one year and 3 months. Accordingly, it is only fair and just, and the court orders this this period is taken into account in computing his sentence in line with section 333(2) of the Criminal Procedure Code. An amended committal warrant shall be signed by the Deputy Registrar to take this period into account.
14. The applicant then prays that his sentence be reviewed and he be considered to serve the remainder of his prison term on probation seeing that the sentence of life imprisonment is minimum. I find no basis to review the sentence for the remainder of the 30 years term to probation and consequently, that prayer is declined.
15. The application is thus allowed to the extent that the applicant shall serve a term of life imprisonment determined to last 30 years from 26/11/2014 until completion.
16. Orders accordingly.
Ruling delivered, dated and signed on the Virtual Platform Teams this 24th day of January 2024.
HON. ANDAYI W. F.
JUDGE
Ruling delivered in the presence of:
The applicant in person in Manyani Prison.
Ngiri for the State
Johnson: Court assistant.
2. He filed this application by way of a Chamber Summons before the Voi High Court but it was subsequently transferred to the Mombasa High Court because the applicant had been tried before the Mombasa Magistrates Court. The application is supported by an affidavit sworn by the applicant Ndoro Mwang’ongo on 23/5/2023 where he has expounded on the grounds in support of the application.
3. The applicant’s prayers are that this court reviews the life sentence and grant him a more lenient sentence and that the reviewed sentence to take into account the pre-trial period he spent in custody. His contention is that while passing sentence the trial court did not take into account the time spent in custody as above. He then prays that upon taking that period into account the court commutes the remainder of his sentence to a non-custodial term of probation.
4. I have considered the application, the grounds in support thereof, the supporting affidavit and the submissions by the applicant. The issue for determination is whether or not the sentence of life imprisonment passed upon the applicant can be reviewed to a lesser term and the remainder commuted to probation.
5. The learned trial magistrate imposed and this court confirmed on appeal the statutorily provided for sentence for the offence of defilement under section 8(1) as read with section 8(2) of the Sexual Offences Act of life imprisonment upon the applicant. The sentence the trial court passed of life imprisonment is the minimum term provided by law for the offence he was convicted. There was no other lesser sentence that the learned trial magistrate or the High Court on appeal would have imposed rather than life imprisonment. So, the prayer that the same be reviewed to a lesser term and eventually he be placed on probation cannot apply.
6. The term of life imprisonment was indefinite. The Court of Appeal has in recent decisions determined that an indefinite term of life imprisonment is unconstitutional (see the cases of Manyeso v Republic [2023] KECA 827 (KLR), Ayako v Republic [2023] KECA 1563 (KLR), and MB v Republic [2024] KECA 324 (KLR). In the cases of in Ayako v Republic (supra), and MB v Republic (supra) the Court of Appeal substituted indeterminate life imprisonment terms with a definite term of 30 years’ imprisonment while in Manyeso (supra), the term was 40 years imprisonment.
7. In consideration of this emerging jurisprudence by the Court of Appeal on life sentence and substitution of indeterminate life sentences with determinate sentences, and in consideration of mitigation given by the applicant, I find that he should benefit from the lesser period of 30 years imprisonment.
8. Consequently, I find and hold that the sentence of life imprisonment imposed by the trial court and confirmed by this court on appeal is determined to be 30 years imprisonment.
9. On the issue of the time spent in remand custody during trial, Section 333 (2) of the CPC provides thus:
"(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..."
10. The Sentencing Policy Guidelines 2023 explain this provision further that:
“2.3.18 Section 333 (2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody. Failure to do so impacts the overall period of detention which may result in a punishment that is not proportionate to the seriousness of the offence committed. This also applies to those who are charged with offences that involve minimum sentences as well as where an accused person has spent time in custody because he or she could not meet the terms of bail or bond.
2.3.19 Upon determining the period of imprisonment to impose upon an offender, the court must then deduct the period spent in custody in identifying the actual period to be served (see GATS at Part V). This period must be carefully calculated – and courts should make an enquiry particularly with unrepresented offenders – for example, there may be periods served where bail was interrupted and a short remand in custody was followed by a reissuance of bail e.g., where a surety is withdrawn, and a new surety is later found. This calculation must include time spent in police custody.”
11. Explaining this provision of the law, the Court of Appeal in the case of Ahamad Abolfathi Mohammed & another v Republic [2018] eKLR, held that the court should include the period already spent in custody from the time of arrest, in the sentence that it metes out to an accused person.
12. Since the trial court did not have opportunity to consider that issue at the time, it follows that it has to be considered by this court having made the indefinite term of life imprisonment to a definite term of 30 years.
13. I have perused the trial court record and observed that the applicant was arrested on 26/11/2014. He remained in custody from the time he took plea, throughout the trial court until his sentencing on 29/2/2016 which is about one year and 3 months. Accordingly, it is only fair and just, and the court orders this this period is taken into account in computing his sentence in line with section 333(2) of the Criminal Procedure Code. An amended committal warrant shall be signed by the Deputy Registrar to take this period into account.
14. The applicant then prays that his sentence be reviewed and he be considered to serve the remainder of his prison term on probation seeing that the sentence of life imprisonment is minimum. I find no basis to review the sentence for the remainder of the 30 years term to probation and consequently, that prayer is declined.
15. The application is thus allowed to the extent that the applicant shall serve a term of life imprisonment determined to last 30 years from 26/11/2014 until completion.
16. Orders accordingly.
Ruling delivered, dated and signed on the Virtual Platform Teams this 24th day of January 2024.
HON. ANDAYI W. F.
JUDGE
Ruling delivered in the presence of:
The applicant in person in Manyani Prison.
Ngiri for the State
Johnson: Court assistant.