- The Applicant was charged with the offence of breaking and stealing contrary to Section 304 (1) as read with section 304(2). The particulars were that the accused on the 3rd day of May, 2023 at around 0100Hrs at Sogomo village in Baringo County broke and entered into a dwelling housing of Caroline Chebet with intent to commit a felony therein stealing and did steal 90Kgs of maize valued at Kshs.700/= the property of Caroline Chebet. The Applicant was charged, convicted and sentenced to serve 3 years imprisonment.
- The Applicant has approached this court seeking sentence review and for the period of 4 Months and 27 days that he was in custody pending trial to be considered as part of the sentence as provided by section 333(2)(b) of the Criminal procedure Code. He stated that he was arrested on 3rd May 2023 and is remaining with 1 year 5 months to complete sentence.
- When the matter came up for hearing, the applicant informed the court that his prayer is for period served in remand to be considered and to serve the remainder of sentence on a non-custodial sentence.
- Ms. Ratemo Counsel representing the state submitted that she has no objection to the time spent in custody being considered. She stated that the Applicant has served 4 Months out of his sentence and a social inquiry report has been filed and in the report, there is objection to him being granted a non-custodial sentence. She thus urged the court to look at the report.
- A social inquiry report revealed that the father of the applicant suffered stroke in the year 2007 and his mother does casual jobs within the community. He has nine other siblings and the family has no history of criminality save for the applicant.
- From the report, the applicant did KCSE examination in the year 1994 and scored a mean grade of C. In the year 1999, he started doing casual jobs within the community and running a food kiosk. He was married but his wife passed on in the year 2013 due to cancer. He married a second wife who stayed with him for a period of four years then returned to her parents due to cultural issue in that they were related. The inmate is blessed with four children. From the report he used to take alcohol but he stopped and while in prison he goes for physiotherapy once in a month. He said the victim has forgiven him. The applicant’s son and sister who were interviewed are willing to welcome the applicant back though they did not commit to facilitate him in community rehabilitation.
- From the report, the victim is still bitter and is opposed to the applicant the being released early; she says the applicant has not asked her for forgiveness.
- The local administration opposed the applicant being released at the moment since he has just finished 4 months since he was sentenced. He added that the community at large is still hostile towards him and if released, his life is at danger. They said he may be released at a later period and not now. They said he had not been taking care of his children.
DETERMINATION
- I have considered sentiments by the local administration, the victim and accused’s family. I note that of the 3 year sentence imposed against the applicant, he has served 4 months. That may explain why there is still hostility towards him on the ground. In view of the negative sentiments from people interviewed, I find this matter not suitable for revision now. The applicant may renew application at a later date.
- In respect to period served in remand, Section 333 (2) of the Criminal Procedure Code provide 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.”
- Further, in the case of Ahamad Abolfathi Mohammed & Another V Republic, [2018] eKLR, the Court of Appeal when dealing with an appeal in which the High Court was faulted for, inter alia, substituting the sentence imposed on the appellants by the trial court and ordering that it shall take effect from the date of conviction by the trial court stated as follows:-
“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. …. We find that the first appellate court misdirected itself in that respect and should have directed the appellants’ sentence of imprisonment to run from the date of their arrest on 19th June 2012.”
- In view of the above, the applicant is entitled to have the period of 4 months and 27 days he served in remand computed in the sentence imposed by trial court.
- FINAL ORDERS: -
- Prayer for revision of sentence is hereby dismissed.
- Period served by the applicant in remand to be computed in the sentence.
Ruling delivered, dated and signed Virtually at Kabarnet
This 13th Day of March 2024.