1) The applicant was charged, tried and convicted in Makindu MCCR 451/2019 for possession of wildlife trophy contrary to section 92(4) of the Wildlife Conservation and Management Act 2013. Particulars are that on 11th day of May 2019 at B.P Stage in Kibwezi subcounty within Makueni Count, jointly with another not before court was found in possession of wildlife trophy namely 3 pieces of elephant tusks weighing about 1 kg with a street value of Kshs. 100,000 without a certificate of ownership from Director Kenya Wildlife Service.
2) He was on 12/1/2023 sentenced to a fine of Kshs. 3,000,000 in default to serve 5 years imprisonment.
3) The applicant has filed this application under section 333(2) of Penal Code on the ground that the trial court did not factor in the period he was in custody prior to the sentence .
That he was arrested on 11/5/2019 and sentenced on 12/1/2023.
4) However the record shows that the accused was released on bond on 13/11/2019.
5) He was only in custody between 11/5/2019 and 13/11/2019 a period of 6 months.
6) S. 333. Of the Criminal Procedure Code States ;
Warrant in case of sentence of imprisonment
(1) A warrant under the hand of the judge or magistrate by whom a person is sentenced to imprisonment, ordering that the sentence shall be carried out in any prison within Kenya, shall be issued by the sentencing judge or magistrate, and shall be full authority to the officer in charge of the prison and to all other persons for carrying into effect the sentence described in the warrant, not being a sentence of death.
(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.
7) I have perused the record and note that in sentencing the applicant the trial court did not take into account the period the applicant had spent in custody before he was released on bond.
8) This ought to have been taken into account with respect to the default sentence
9) In the circumstance it is my view that the prayer for review is tenable.
10) The deprivation of liberty at pre trial occurs during the pre-assumption of innocence period. More often than not it only happens because the suspect is unable to raise bond terms imposed by the court.
11) In my view – section 333(2) is there to ensure that time spent in custody counts as part of any custodial sentence that is meted against the accused.
12) Hence - the sentence imposed by the trial court be and is hereby revised thus – the accused is sentenced to pay a fine of Kshs. 3,000,000 in default to serve 5 years imprisonment less the 6 months already spent in pre-trial detention.
13) An amended Committal warrant to issue
14) Orders accordingly
Dated signed and delivered this 9th April 2025
Mumbua T Matheka
Judge
Chrispol Court Assistant
Applicant Present
Kazungu for State