Skip to content
JudgmentSAMUEL NZAI RUWA VS The Republic5 min read

SAMUEL NZAI RUWA VS The Republic

High Court at Malindi High Court · · M Thande

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MALINDI

MISCELLANEOUS APPLICATION NO. E167 OF 2024

SAMUEL NZAI RUA …………..………………………........……………….………APPLICANT

VERSUS

REPUBLIC……………….……...………………….....….………………………..RESPONDENT

RULING

  1. The Applicant herein was charged in Malindi Criminal Case No. E081 of 2021 and convicted of the offence of incest contrary to Section 20(1) of the Sexual Offences Act. He was convicted and sentenced to 6 years imprisonment.
  2. The Applicant has now moved to this Court by his Application seeking that the Court reviews his sentence by taking into account the period from the date of his arrest on 24.10.2020 to 15.11.22, the date of his conviction.  He also seeks that should the eventual computation result in a balance of 3 years or less, he be granted probation orders if his circumstances so fit.
  3. The Respondent did not oppose the Application. 
  4. The lower court record shows that the Applicant was arrested on 24.10.2020. He remained in custody until he was convicted on 27.10.22 and sentenced on 15.11.22. The Applicant’s complaint is that the trial court failed to consider the period spent in custody as part of his sentence as required by the Judiciary sentencing policy guidelines. 
  5. Section 333(2) of the Criminal Procedure Code provides as follows:

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.

  1. The proviso to Section 333(2) of the Criminal Procedure Code requires that court while sentencing, do take into account the period an accused person has spent in custody pending trial. In the case of Bethwel Wilson Kibor v Republic [2009] eKLR, the Court of Appeal had this to say about the said proviso:

The incident took place way back in 1999. The appellant was promptly arrested and taken to court.  There were long adjournments due to transfers and/or changes of trial Judges resulting in long incarcerations of the appellant.  By proviso to section 333(2) of Criminal Procedure Code where a person sentenced has been held in custody prior to such sentence, the sentence shall take account of the period spent in custody.  Ombija, J. who sentenced the appellant did not specifically state that he had taken into account the 9 years period that the appellant had been in custody.

The appellant told us that as at 22nd September, 2009 he had been in custody for ten years and one month.  We think that all these incidents ought to have been taken into account in assessing sentence.

  1. Flowing from the above authority, a trial court must specifically state that the period spent in custody by an accused person pending trial, has been taken into account when imposing sentence.  
  2. The Applicant contended that the trial court did not compute the period spent in custody in the sentence imposed upon him. The record however shows that while sentencing the Applicant t 6 years imprisonment, the trial Magistrate did consider the period he spent in custody pending trial. The trial magistrate stated:

I have also considered the accused has been in custody since 2020 about 2 years and he is also elderly.

  1. The trial Magistrate clearly cognizant of the provisions of the proviso to Section 333(2) of the Act indicated that she had considered that the Applicant had been in custody for 2 years.   Accordingly, contrary to the Applicant’s allegation, the period spent in custody pending trial was taken into account by the trial court. 
  2. The Applicant has also asked that he be granted probation order should the computed period be 3 years or less.  
  3. Under the Section 4 of the Probation of Offenders Act, courts have the power to permit conditional release of offenders under probation. The provision further stipulates the circumstances under which a probation order may be granted and the conditions that may be imposed. Section 4 provides in part as follows:
  4. Where a person is charged with an offence which is triable by a subordinate court, and the court thinks that the charge is proved but is of the opinion that, having regard to age, character, antecedents, home surroundings, health or mental condition of the offender, or to the nature of the offence, or to any extenuating circumstances in which the offence was committed, it is expedient to release the offender on probation, the court may—
  5. convict the offender and make a probation order; or
  6. without proceeding to conviction, make a probation order, and in either case may require the offender to enter into a recognizance, with or without sureties, in such sum as the court may deem fit.
  7. Where any person is convicted of an offence by the High Court and the court is of the opinion that, having regard to the age, character, antecedents, home surroundings health or mental condition of the offender, or to the nature of the offence, or to any extenuating circumstances in which the offence was committed, it is expedient to release the offender on probation, the court may, in lieu of sentencing him to any punishment, make a probation order, and may require the offender to enter into a recognizance, with or without sureties, in such sum as the court may deem fit.
  8. It is quite evident from the above provision, that where a charge is proved in a court as in the Applicant’s case, and the court forms the opinion, after considering the factors listed, that it is expedient to release the offender on probation, the court may make a probation order in lieu of sentencing him to any punishment. A reading of the above provision makes it clear that the power to grant probation orders can only be exercised by the trial court. This power cannot be invoked post-conviction and sentence and pursuant to an application such as the one before this Court. 
  9. In the end and in view of the foregoing, the Court finds that the Application before it is unmerited and the same is hereby dismissed.   

DATED, SIGNED and DELIVERED in MALINDI this 8th day of November 2024

_____________________

M. THANDE 

JUDGE

    SAMUEL NZAI RUWA VS The Republic SAMUEL NZAI RUWA VS The Republic