(Being sentence review arising from original Criminal Case No. 82 of 2017 at Thika)
1. The Applicant herein was charged with the offence of gang rape contrary to section 10 of the Sexual Offence Act. He was convicted and sentenced to 15 years in prison. The applicant seeks to review the sentence only on the following grounds; that the time spent in custody as he underwent trial be considered; that he be considered for a more lenient sentence since he was a first offender, was young at the time sentence was imposed on him and that he has been remorseful.
2. The Applicant filed the present application seeking revision of sentence pursuant to the provisions of section 333(2) of the Criminal Procedure Code by taking into account the time spent in custody. The applicant also seeks orders that the sentence be reviewed and replaced with a lesser sentence.
3. In support of his application, he makes reference to several cases including Bukenya v Uganda Criminal Appeal No. 17 of 2010 (2012); Ahmed Abolfathi Mohammed & Another Criminal Appeal No 135 of 2016(unreported) . He states that he was arrested on 23rd October 2017 and sentenced on 30th October 2019 a total of 1 year 8 months a period not considered during sentencing.
4. He also prays for a lesser sentence rather than the minimum mandatory sentence of 15 years on the grounds that he is a first offender, he is remorseful, a sole bread winner of his entire family, and that he has reflected and he is deeply sorry for the events of the fateful day. He relies on the case of Philip Maingi & 5 others V DPP & another Ref, E017 of 2021.
5. The respondent opposed the application stating that the trial court in passing sentence considered both the mitigating and aggravating circumstances but the aggravating circumstances outweighed mitigating circumstance hence the sentence. It was also submitted that the time spent in custody was considered as seen in the judgment.
6. Section 333(2) of the Criminal Procedure Code provides as hereunder: -
“(2) Subject to the provisions of section 38 of the Penal Code 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.”
7. By virtue of the provisions of section 333(2) of the CPC, courts are obliged to take into account the period a person sentenced, spent in custody prior to the sentence. The Court of Appeal in Ahamad Abolfathi Mohammed & Another Vs. Republic Criminal Appeal No 135 of 2016(unreported) held that: -
“By dint of section 333(2) of the Criminal Procedure Code, the court was obliged to take into account the period that they had spent in custody before they were sentenced. Although the learned judge stated that he had taken into account the period the appellants had been in custody, he ordered that their sentence shall take effect from the date of their conviction by the trial court. With respect, there is no evidence that the court took into account the period already spent by the appellants in custody. “Taking into account” the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody. It is not enough for the court to merely state that it has taken into account the period already spent in custody and still order the sentence to run from the date of the conviction because that amounts to ignoring altogether the period already spent in custody. It must be remembered that the proviso to section 333(2) of the Criminal Procedure Code was introduced in 2007 to give the court power to include the period already spent in custody in the sentence that it metes out to the accused person.”
8. Also, the Court of Appeal in Bethwel Wilson Kibor vs. Republic (2009) eKLR held that: -
“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...”
9. According to The Judiciary Sentencing Policy Guidelines: -
“The proviso to section 333 (2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody if the convicted person had been in custody during the trial. Failure to do so impacts on the overall period of detention which may result in an excessive punishment that is not proportional to the offence committed. In determining the period of imprisonment that should be served by an offender, the court must take into account the period in which the offender was held in custody during the trial.”
10. Further, according to section 137L (2) (a) of the CPC: -
(2) In passing a sentence, the court shall take into account—
(a) the period during which the accused person has been in custody;
11. It therefore follows that the requirement in section 333(2) of the Criminal Procedure Code to consider time spent in custody during trial, is mandatory. As held in JMM v Republic [2021] eKLR, the failure to comply with the requirement compromises the right of the accused to less severe sentence; subjects the accused to a more severe sentence than the one prescribed; and inadvertently condones deprivation of liberty contrary to law. It is thus paramount that a sentence must, when meted out, outrightly and emphatically state its commencement date in such a way that it reflects the period spent in custody in the sentence imposed.
12. I have considered the record before Court and note that the applicant had been in custody from the date of arrest being 24/10/2017 to 30/10/2019 when the sentence was pronounced. I have perused the trial court record and I note that when sentencing the applicant, the learned Magistrate did not specifically state that she had taken into account the period spent in custody. This was contrary to what was stated and submitted by the State.
13. Consequently, I do find that the applicant is entitled to have the period spent in remand considered or factored in, in the computation of his sentence period.
14. The applicant also seeks that this court reviews his sentence and considers giving him a lenient sentence term. It is common ground that the applicant was charged with the offence of gang rape contrary to section 10 of the Sexual Offences Act. This section provides as follows;
“Any person who commits the offence of rape or defilement under this Act in association with another or others, or any person who, with common intention, is in the company of another or others who commit the offence of rape or defilement is guilty of an offence termed gang rape and is liable upon conviction to imprisonment for a term of not less than fifteen years but which may be enhanced to imprisonment for life.”
15. This section indicates that a conviction for the offence of gang rape invites a custodial term sentence of not less than fifteen years which may be enhanced to life imprisonment. The question then is whether the applicant was sentenced to a sentence outside the law.
16. The applicant was sentenced to serve 15 years imprisonment. He contends that the sentence was excessive and urges the court to reconsider the sentence. It is trite law that sentencing is an exercise of discretion and an appellate court will not interfere with that exercise of discretion unless it is shown that the same was exercised whimsically.
17. In this instance, I find that the trial court exercised a judicial discretion as guided by the law when it sentenced the applicant to the fifteen years period prescribed in law. The trial court acted in accordance with the law. The applicant has not averred and/or tendered any material evidence to demonstrate that the sentencing discretion was whimsically exercised to warrant this Court’s intervention. Consequently, I do not find that the sentence is excessively harsh. The sentence was properly meted out. Hence the plea for a lesser sentence is with no merit.
18. In the end, I find that the application is merited only to the extent that the period spent in custody during trial be considered in the computation of the 15 years imprisonment in line with section 333(2) of the CPC. Save for that, the application fails on all other grounds.
Orders accordingly
Delivered, Dated and Signed this 24th day of January 2025