1. The applicant filed the instant application for review of sentence under Section 329 of the CPC and Paragraph 4.8 of the Sentencing policy guidelines, 2023.
2. The applicant sought the following orders: -
⮚ THAT, this application be certified as urgent and it be admitted for hearing and determination on priority basis.
⮚ THAT, this honourable court be pleased to note that the period served in remand custody during trial, has not been accounted for in the imposed sentence.
⮚ THAT, this honourable court be pleased to order to review the applicant's sentence.
⮚ THAT, this honourable court be pleased to order for a presentence report and hear further evidence in mitigation to review the applicant's sentence downwards.
⮚ THAT, this honourable court be pleased to sentence the applicant to a reduced sentence than 15 years imprisonment, including a non-custodial sentence by dint of Section 4 of the Probation of Offenders Act for the remaining part of his sentence.
⮚ Any other order(s) that this Honourable Court may be pleased to issue by dint of Section 35 of the Penal Code in the applicant's circumstances.
3. The application was anchored on the following grounds: -
a). THAT, the applicant has no pending appeal before the Court of Appeal in respect of Cr. Case No. 80 of 2016 at Nairobi.
b). THAT, the High Court has jurisdiction to impose a lesser sentence than 15 years imprisonment in light of emerging mitigation by dint of Section 329 of the CPC.
c). THAT, the applicant is a first offender, aged 37 years and remorseful for the offence, hence a lenient sentence will be more beneficial to him, his children and the society.
d). THAT, this court has jurisdiction to hear evidence in mitigation to inform itself as to the proper reduced sentence to impose in the circumstances considering the time already served under the orders of the authorities within the meaning of Section 329 of the CPC.
e). THAT, this honourable court has jurisdiction to hear and determine this application as it is endowed with authority to administer justice by dint of Article 165 of the Constitution, in deserving cases as the subject case herein.
f). THAT, this honourable court has jurisdiction to call and consider evidence of the applicant's character on record from the date of arrest, by dint of Section 56 of the Evidence Act, as a relevant factor in considering to grant the sentence review sought.
g). THAT, this honourable court has jurisdiction to gauge the suitability of the applicant to serve a lesser sentence considering his age, time already served under the orders of authorities from the date of arrest among other emerging mitigating factors.
h). THAT, a sentence of 15 years imprisonment is harsh and excessive to a first offender, and whom the time already served under the orders of the court from the date of arraignment could be sufficient sentence to meet objectives.
4. The applicant urged the court to consider granting the application in the interests of justice.
5. The application was supported by the annexed affidavit of POLYCARP OCHIENG AMIMO contents of which have been fully considered by the court.
6. At the hearing of the application the applicant told this court that he was seeking to have the period spent in custody before conviction taken into account in the computation of his sentence.
7. He further submitted that if that was done, he would be left with 3 years.
8. The applicant urged this court to consider granting him a non- custodial sentence for the balance of 3 years.
9. Mr Mogere counsel for the state submitted that he was not opposed to the application to the extent that this court considers the period he was in remand before conviction and sentencing.
10. Counsel informed the court that the applicant was in remand from 5/12/2016 and was granted bond on 18/12/2017 when he was released on bail. The applicant had therefore spent 1 years 13 days in custody which period ought to have been discounted from his sentence.
11. The respondent’s counsel did not concede to the request by the applicant to have the remainder of the sentence commuted to a non-custodial sentence.
12. However, the applicant urged the court to consider the fact that he would be left with 3 years of custodial sentence thus he pleaded to have the same substituted with a non – custodial sentence.
13. The court has considered the application as well as the arguments advanced in favor of the same by the applicant as well as counsel for the state.
14. It is clear from the submissions that the applicant had spent a stint in prison custody before he was convicted and sentenced. The period of 1 year and 13 days as per the submissions by Counsel for the state was not discounted from his sentence.
15. The Criminal procedure Code under Section 333(2) requires the court in sentencing to factor the period in sentencing and give the accused person credit for the same.
16. The trial court having failed to do so inadvertently, this court would therefore allow the application to that extent only.
17. The applicant urged the court to substitute the remainder of the period for a non- custodial sentence.
18. This court is not minded to travel that road considering that there is absolutely no plausible reason to do so.
19. The accused having been sentenced by a judge of this court, the judge must have considered custodial sentence to be the most ideal sentence taking into account the gravity of the offence.
20. The court is thus not inclined to grant the prayer for a non -custodial sentence. The applicant shall serve the remainder of his prison term fully less the 1 year 13 days period conceded to by the prosecution.
21. It is so ordered.
2. The applicant sought the following orders: -
⮚ THAT, this application be certified as urgent and it be admitted for hearing and determination on priority basis.
⮚ THAT, this honourable court be pleased to note that the period served in remand custody during trial, has not been accounted for in the imposed sentence.
⮚ THAT, this honourable court be pleased to order to review the applicant's sentence.
⮚ THAT, this honourable court be pleased to order for a presentence report and hear further evidence in mitigation to review the applicant's sentence downwards.
⮚ THAT, this honourable court be pleased to sentence the applicant to a reduced sentence than 15 years imprisonment, including a non-custodial sentence by dint of Section 4 of the Probation of Offenders Act for the remaining part of his sentence.
⮚ Any other order(s) that this Honourable Court may be pleased to issue by dint of Section 35 of the Penal Code in the applicant's circumstances.
3. The application was anchored on the following grounds: -
a). THAT, the applicant has no pending appeal before the Court of Appeal in respect of Cr. Case No. 80 of 2016 at Nairobi.
b). THAT, the High Court has jurisdiction to impose a lesser sentence than 15 years imprisonment in light of emerging mitigation by dint of Section 329 of the CPC.
c). THAT, the applicant is a first offender, aged 37 years and remorseful for the offence, hence a lenient sentence will be more beneficial to him, his children and the society.
d). THAT, this court has jurisdiction to hear evidence in mitigation to inform itself as to the proper reduced sentence to impose in the circumstances considering the time already served under the orders of the authorities within the meaning of Section 329 of the CPC.
e). THAT, this honourable court has jurisdiction to hear and determine this application as it is endowed with authority to administer justice by dint of Article 165 of the Constitution, in deserving cases as the subject case herein.
f). THAT, this honourable court has jurisdiction to call and consider evidence of the applicant's character on record from the date of arrest, by dint of Section 56 of the Evidence Act, as a relevant factor in considering to grant the sentence review sought.
g). THAT, this honourable court has jurisdiction to gauge the suitability of the applicant to serve a lesser sentence considering his age, time already served under the orders of authorities from the date of arrest among other emerging mitigating factors.
h). THAT, a sentence of 15 years imprisonment is harsh and excessive to a first offender, and whom the time already served under the orders of the court from the date of arraignment could be sufficient sentence to meet objectives.
4. The applicant urged the court to consider granting the application in the interests of justice.
5. The application was supported by the annexed affidavit of POLYCARP OCHIENG AMIMO contents of which have been fully considered by the court.
6. At the hearing of the application the applicant told this court that he was seeking to have the period spent in custody before conviction taken into account in the computation of his sentence.
7. He further submitted that if that was done, he would be left with 3 years.
8. The applicant urged this court to consider granting him a non- custodial sentence for the balance of 3 years.
9. Mr Mogere counsel for the state submitted that he was not opposed to the application to the extent that this court considers the period he was in remand before conviction and sentencing.
10. Counsel informed the court that the applicant was in remand from 5/12/2016 and was granted bond on 18/12/2017 when he was released on bail. The applicant had therefore spent 1 years 13 days in custody which period ought to have been discounted from his sentence.
11. The respondent’s counsel did not concede to the request by the applicant to have the remainder of the sentence commuted to a non-custodial sentence.
12. However, the applicant urged the court to consider the fact that he would be left with 3 years of custodial sentence thus he pleaded to have the same substituted with a non – custodial sentence.
13. The court has considered the application as well as the arguments advanced in favor of the same by the applicant as well as counsel for the state.
14. It is clear from the submissions that the applicant had spent a stint in prison custody before he was convicted and sentenced. The period of 1 year and 13 days as per the submissions by Counsel for the state was not discounted from his sentence.
15. The Criminal procedure Code under Section 333(2) requires the court in sentencing to factor the period in sentencing and give the accused person credit for the same.
16. The trial court having failed to do so inadvertently, this court would therefore allow the application to that extent only.
17. The applicant urged the court to substitute the remainder of the period for a non- custodial sentence.
18. This court is not minded to travel that road considering that there is absolutely no plausible reason to do so.
19. The accused having been sentenced by a judge of this court, the judge must have considered custodial sentence to be the most ideal sentence taking into account the gravity of the offence.
20. The court is thus not inclined to grant the prayer for a non -custodial sentence. The applicant shall serve the remainder of his prison term fully less the 1 year 13 days period conceded to by the prosecution.
21. It is so ordered.