1. Victor Onyango Owuor the applicant, was charged, tried, convicted and sentenced on four counts being, stealing by agent contrary to section 283(b) of the Penal Code (Cap. 63) Laws of Kenya; forgery contrary to section 349 of the Penal Code; making a document without authority contrary to section 357(a) of the Penal Code and uttering a false document contrary to section 353 of the Penal Code.
2. He was sentenced to serve 24 months or 2 years imprisonment on the charge of stealing by agent and six (6) months’ imprisonment to each of the remaining three. The sentences were ordered to run concurrently meaning that he would serve a total of two years’ imprisonment.
3. He filed this application dated 26/6/2024 complete with submissions. His prayers are that this court reviews his sentence to take into account the pre-trial period he spent in custody from 23/9/2020 when he was arrested to 26/11/2020 when he was released on bond. His contention is that while passing sentence the trial court did not take into account the time spent in custody as above. He then prays that upon taking that period into account the court commutes the remainder of his sentence to a non-custodial term of probation.
4. It is true that the applicant spent 2 months and 3 days in remand custody prior to his release on bond. In passing sentence against the applicant, the trial court did not make any reference to section 333(2) of the Criminal Procedure Code (Cap. 75) Laws of Kenya, an indication that it did not take into account that period of custody. As was held by the Court of Appeal in the case of Ahamad Abolfathi Mohammed & another v Republic [2018] eKLR, the court should include the period already spent in custody from the time of arrest, in the sentence that it metes out to an accused person. It was therefore a misdirection by the trial court not to do so.
5. Section 333 (2) of the CPC provides thus:
"(2) 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..."
6. The Judiciary Sentencing Policy Guidelines provide that:
“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."
7. The period to be taken into account under section 333(2) CPC in computing the sentence to be served by the applicant is 2 months and 3 days. In failing to do so, the trial magistrate was in error and this court in exercise of the revisionary powers under section 364 CPC revises the sentence to that extent.
8. The applicant then prays that his sentence be reviewed and he be considered to serve the remainder of his prison term on a non-custodial sentence.
9. The offender has been in custody after conviction from 30/11/2023. That makes 11½ months to-date. Added to the 2 months and 3 days makes it just about 13½ months, that is 1 year 1½ months. He would then remain with about 10½ months less by a few days to complete the 24 months.
10. The applicant avers that with the application of remission to his sentence he is supposed to serve 1 year and 4 months imprisonment. That is according to him but there is no report from prison authorities confirming that the applicant has not forfeited remission of his sentence which is earned on admission in prison. Remission of a term of imprisonment is considered as provided by Section 46 of the Prison Act (Cap. 90) Laws of Kenya because under section 46(1) remission is earned by industry and good conduct. It is an administrative act and the determination is be made by Commissioner General of Prison. No doubt if the offender is entitled to the same, he will benefit. But that is not for this court to determine.
11. I find no basis to review the sentences for the remainder to non-custodial and consequently, that prayer is declined.
12. In the premises, the applicant’s application succeeds to the limited extent that the term of two (2) years imprisonment shall be calculated taking into account the 2 months and 3 days that the applicant was in remand custody which shall be reduced from the remainder of his prison term.
13. Orders accordingly.
Ruling delivered, dated and signed at Mombasa this 15th of November 2024
HON. ANDAYI W. F.
JUDGE
Ruling transmitted to prison authorities electronically to be given effect immediately.
2. He was sentenced to serve 24 months or 2 years imprisonment on the charge of stealing by agent and six (6) months’ imprisonment to each of the remaining three. The sentences were ordered to run concurrently meaning that he would serve a total of two years’ imprisonment.
3. He filed this application dated 26/6/2024 complete with submissions. His prayers are that this court reviews his sentence to take into account the pre-trial period he spent in custody from 23/9/2020 when he was arrested to 26/11/2020 when he was released on bond. His contention is that while passing sentence the trial court did not take into account the time spent in custody as above. He then prays that upon taking that period into account the court commutes the remainder of his sentence to a non-custodial term of probation.
4. It is true that the applicant spent 2 months and 3 days in remand custody prior to his release on bond. In passing sentence against the applicant, the trial court did not make any reference to section 333(2) of the Criminal Procedure Code (Cap. 75) Laws of Kenya, an indication that it did not take into account that period of custody. As was held by the Court of Appeal in the case of Ahamad Abolfathi Mohammed & another v Republic [2018] eKLR, the court should include the period already spent in custody from the time of arrest, in the sentence that it metes out to an accused person. It was therefore a misdirection by the trial court not to do so.
5. Section 333 (2) of the CPC provides thus:
"(2) 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..."
6. The Judiciary Sentencing Policy Guidelines provide that:
“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."
7. The period to be taken into account under section 333(2) CPC in computing the sentence to be served by the applicant is 2 months and 3 days. In failing to do so, the trial magistrate was in error and this court in exercise of the revisionary powers under section 364 CPC revises the sentence to that extent.
8. The applicant then prays that his sentence be reviewed and he be considered to serve the remainder of his prison term on a non-custodial sentence.
9. The offender has been in custody after conviction from 30/11/2023. That makes 11½ months to-date. Added to the 2 months and 3 days makes it just about 13½ months, that is 1 year 1½ months. He would then remain with about 10½ months less by a few days to complete the 24 months.
10. The applicant avers that with the application of remission to his sentence he is supposed to serve 1 year and 4 months imprisonment. That is according to him but there is no report from prison authorities confirming that the applicant has not forfeited remission of his sentence which is earned on admission in prison. Remission of a term of imprisonment is considered as provided by Section 46 of the Prison Act (Cap. 90) Laws of Kenya because under section 46(1) remission is earned by industry and good conduct. It is an administrative act and the determination is be made by Commissioner General of Prison. No doubt if the offender is entitled to the same, he will benefit. But that is not for this court to determine.
11. I find no basis to review the sentences for the remainder to non-custodial and consequently, that prayer is declined.
12. In the premises, the applicant’s application succeeds to the limited extent that the term of two (2) years imprisonment shall be calculated taking into account the 2 months and 3 days that the applicant was in remand custody which shall be reduced from the remainder of his prison term.
13. Orders accordingly.
Ruling delivered, dated and signed at Mombasa this 15th of November 2024
HON. ANDAYI W. F.
JUDGE
Ruling transmitted to prison authorities electronically to be given effect immediately.