Githinji v Republic [2023] KEHC 26244 (KLR)

Githinji v Republic (Criminal Revision 61 of 2023) [2023] KEHC 26244 (KLR) (5 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26244 (KLR)

Republic of Kenya

In the High Court at Kibera

Criminal Revision 61 of 2023

DR Kavedza, J

December 5, 2023

Between

Peter Njoroge Githinji

Applicant

and

Republic

Respondent

Ruling

1. Before me is an application by the applicant, Peter Njoroge Githinji, seeking revision of the sentence he is currently serving. The applicant was charged and after a full trial convicted for the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act. He was sentenced to serve 20 years imprisonment.

2. Aggrieved by the sentence, the applicant filed Criminal Appeal No. 78 of 2016 wherein the conviction was upheld and sentence affirmed by Kimaru J (as he then was) on 6th June, 2019. The applicant has now approached this court seeking a revision of the sentence imposed by the trial court. He prays that this court, while computing his sentence, should takes into account the period he spent in remand during the trial.

3. I have perused the judgment of Kimaru J and I find that the issue in question herein was not canvassed in the appeal. I have also considered the judgment of the trial court and indeed, the court did not consider the time the applicant spent in custody when imposing the sentence.

4. While the application is premised on the provisions of section 333 (2) of the Criminal Procedure Code, it invokes the revisionary jurisdiction of this court which is donated by section 362 of the Criminal Procedure Code which reads as follows:“…The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.

5. Further, section 333 (2) of the Criminal Procedure Code provides that:“(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. In Ahmed Abolfathi Mohamed v Republic [2018] eKLR the Court of Appeal held as follows:“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. We find that the first appellate court misdirected itself in that respect and should have directed the appellant’s sentence of imprisonment to run from the date of arrest on 19th June 2012. ”

7. The Judiciary Sentencing Policy Guidelines states as follows as regards the section:“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.”

8. Based on the foregoing decision and the existing jurisprudence, I allow the application and direct that the period the applicant spent in custody be included in the computation of his sentence by the Prisons Officers.

9. For the avoidance of doubt, the applicant shall serve the sentence of 20 years imprisonment as imposed by the trial court and affirmed by Kimaru J on 6th June 2019, save that the sentence shall run effective from the date of arrest, which is 30th June 2014.

10. It is so ordered.

RULING DATED AND DELIVERED VIRTUALLY THIS 5TH DAY OF DECEMBER 2023. .................D. KAVEDZAJUDGEIn The Presence Of:Mr. Kiragu For The StateThe Applicant Present VirtuallyJoy/Naomi, Court Assistants.