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JudgmentSAMUEL NZIOKA DAVID VS ODPP2 min read

SAMUEL NZIOKA DAVID VS ODPP

High Court at Machakos High Court · · E.N. Maina

  1. The application by the Applicant is brought under Section 333(2) of the Criminal Procedure Code which requires the court to take into consideration the time spent in remand custody when sentencing the accused.
  2. In this case the Applicant was charged with the offence of defilement contrary Section 8(1) as read with Section 8(3) of the Sexual Offences Act.  The sentence prescribed for that offence is a minimum sentence of imprisonment for a term of twenty (20) years and indeed the Applicant was sentenced to 20 years imprisonment.  Being aggrieved, he appealed his conviction and the sentence but the same were upheld by Kemei J in a judgment delivered on 10th April 2019.   The conviction and sentence having been upheld by a court of equal jurisdiction cannot be reviewed by this court.
  3. Further, the sentence being the minimum prescribed by the law cannot be substituted with another sentence.  This resonates with the decision of the Supreme Court in the case of Republic -vs- Mwangi, Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) Petition E018 of 2023 [2024] KESC 34 (KLR) (12th  July 2024) (JUDGMENT) where the court pronounced itself on the issue of the application of its decision in the Muruatetu case to offences under the sexual offences Act and came to the conclusion that the Muruatetu decision applied only to the mandatory sentence of death under Section 204 of the Penal Code as it applied to murder cases.  It is for the above reason and also for reason that I cannot sit on appeal against the judgment of another High Court Judge that I am unable to review the Applicant’s sentence by either reducing it completely or by setting it aside and substituting it with a non-custodial sentence. 
  4. As for the application made under Section 333(2) of the Criminal Procedure Code it is my finding that whereas a court is obligated to take into account the period spent in remand and indeed the sentence should be reduced to take such period into account, in this case the Applicant has intimated that he was on bond at the time he was sentenced.  Section 333(2) of the Criminal Procedure Code does not therefore apply.
  5. Accordingly, the sentence being a minimum sentence shall be considered to run from the date on which he was sentenced.  In effect therefore the application has no merit and it is dismissed.

SIGNED, DATED AND DELIVERED IN COURT (with the Applicant appearing virtually) ON THIS 12TH DAY OF FEBRUARY, 2025.

    SAMUEL NZIOKA DAVID VS ODPP SAMUEL NZIOKA DAVID VS ODPP