- Paul Irungu Kihumba was convicted and sentenced, after full hearing, for the offences of burglary contrary to section 304(2) and stealing contrary to section 279(b) of the Penal Code that he broke and entered the dwelling house of Lucy Waigwe Mwangi, on the night of 31/5/2020 and 1/6/2020 with intent to steal therein and did steal from therein one gas cylinder and a gas regulator both valued at KShs 7,500/= the property of the said Lucy Waigwe Mwangi.
- He was also charged in the alternative with handling stolen goods contrary to section 322(2) of the Penal Code in respect to the said regulator which was found in his possession.
- For the offence of burglary, he was sentenced to serve two (2) years imprisonment while for the offence of stealing he was sentenced to serve three (3) years imprisonment. The sentences were directed to run concurrently meaning that his prison term would be three years for both offences.
- He now applies by way of Notice of Motion dated 10/1/2023 for a sentence review which he variable refers to as revision in the same application. He prays that the court varies his sentence downwards and to order that his sentence starts to run from the date of his arrest. He also prays for a non-custodial sentence of either community service or probation contending that he has served a substantial part of the sentence.
- The application was disposed of by way of written submissions by the applicant and oral submissions by the respondent.
- The applicant submits that he was sentenced both on the principal charge of burglary and the alternative charge of stealing. That is an indication that he does not appreciate that the principal charge had two limbs. It was not a principal charge and the other an alternative.
- The main point of submission by the applicant is that the court failed to take into account the period he had spent in custody prior to his conviction and sentence as provided for under section 333(2) of the CPC.
- The applicant submits that he was in remand custody from 9/9/2020 and was released on bond on 17/12/2020, having remained there for 3 months and 9 days. He was then arrested in a different matter on 22/12/2020 and he remained in custody until conviction and sentence on 29/12/2022. It is therefore his contention that he stayed in custody for a period of 2 years, 2 weeks and 1 day or 737 days and this period ought to be considered in computing his term of imprisonment.
- Learned counsel for the State on his part submits that the State only concedes to the initial period of 3 months and 9 days being taken into account in reduction of the sentence but not the subsequent remand period.
- I agree with the learned prosecutor on that submission because I have perused the trial court file and the proceedings do not indicate anywhere that the trial court canceled his bond. His remaining in custody was not for this matter but a different matter for which apparently he was convicted and sentenced to serve eight years imprisonment as per what he informed the trial court on 8/6/2021.
- It is true that the applicant spent 3 months and 9 days in remand custody prior to his release on bond. In passing sentence against the applicant, the trial court did not make any reference to section 333(2) CPC, an indication that it did not take into account that period of custody. As was held by the Court of Appeal in the case of Ahamad Abolfathi Mohammed & another v Republic [2018] eKLR, the court should include the period already spent in custody in the sentence that it meted out to the appellant. It was therefore a misdirection by the trial court not to do so.
- The period to be taken into account under section 333(2) CPC in computing the sentence to be served by the applicant is 3 months and 9 days. In that failing to do so, the trial magistrate was in error and this court in exercise of the revisionary powers under section 364 CPC revises the sentence to that extent.
- The applicant then prays that his sentence be reviewed and he be considered to serve the remainder of his prison term on a non-custodial sentence.
- The offence of burglary attracts a maximum sentence of ten years imprisonment. The applicant was sentenced to serve 2 years imprisonment. The offence of stealing from a dwelling house contrary to section 279(b) of the PC attracts a maximum of 14 years imprisonment. In this case, the applicant was sentenced to serve 3 years imprisonment. In both cases, the court was quite lenient with the sentence imposed upon the applicant. The sentences were to run concurrently meaning that the applicant would only serve three years imprisonment. He has served just about two and half years and remains with only six months to go. Out of this remaining period, there is still 3 months and 9 days to be knocked off. I find no basis to review the sentences for the remainder to non-custodial and consequently, that prayer is declined.
- In the premises, the applicant’s application succeeds to the limited extent that the term of three years imprisonment shall be calculated taking into account the 3 months and 9 days that the applicant was in remand custody which shall be reduced from the remainder of his prison term.
- Orders accordingly.
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