Amare v Republic [2022] KEHC 3378 (KLR)

Amare v Republic (Criminal Miscellaneous Application E044 of 2022) [2022] KEHC 3378 (KLR) (9 May 2022) (Ruling)

Neutral citation: [2022] KEHC 3378 (KLR)

Republic of Kenya

In the High Court at Siaya

Criminal Miscellaneous Application E044 of 2022

RE Aburili, J

May 9, 2022

Between

Peter Obare Amare

Applicant

and

Republic

Respondent

(Being an Application arising from conviction and sentence of Siaya in HCCRA No. 115/2016 and the Principal Magistrate’s Court at Siaya in Criminal Case (SO) No. 320 of 2015)

Ruling

1. The applicant herein Peter Obare Amara was convicted of the offence of Defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act vide Siaya PM SO case No. 320/2015. He was sentenced to serve mandatory sentence of 20 years imprisonment. On 15/9/2016, he appealed vide Siaya HC CRA No. 115/2016 which appeal was heard on its merits and on 19/2/2018, Hon. Majanja J dismissed the appeal against conviction and sentence.

2. The applicant claims in his application herein that he has not appealed to the Court of Appeal. He is before this court seeking for reconsideration of his sentence, taking into account the provisions of Article 25 of the Constitution and Section 333(2) of the Criminal Procedure Code.According to the applicant, the trial court in sentencing him did not take into account the period spent in remand custody from date of arrest.

3. I have considered the application as presented on 25/4/2022. I have also perused the trial court record and proceedings and judgment.

4. The applicant’s appeal file has also been availed to me and I have perused the same.

5. It is true that the applicant was arrested on 7/6/2015 as per the charge sheet dated 9/6/2015. He was taken to court for Plea on 9/6/2015. On 23/6/2015, the trial court granted him bond of Kshs. 500,000/= plus one surety of similar amount.

6. The proceedings which ended in the judgment delivered on 15/9/2016 and sentence passed against the applicant show that the applicant was never released on bond as granted. Most likely, he could not afford the bond terms. He therefore remained in custody until he was sentenced. There is also no evidence that he was granted bail and that he absconded.

7. Section 333(2) of the Criminal Procedure Code provides that:“… 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.”

8. Article 50(2)(p) of the Constitution further guarantees a convicted person the right to the benefit of the least severe sentence of the prescribed punishments for an offence charged. The sentence imposed was lawful and minimum mandatory after the trial court considered the mitigation and circumstances of the offence.

9. However, as Section 333(2) of the Criminal Procedure Code was not taken into account in sentencing the applicant convict, I allow this application and order that the 20 years imprisonment term imposed on the convict herein Peter Obare Amare shall be calculated from the date of his arrest on 7/6/2015.

10. Orders accordingly.

11. File closed.

DATED, SIGNED AND DELIVERED AT SIAYA THIS 9THDAY OF MAY, 2022R.E. ABURILIJUDGE