Henry Mumo Otondo v Republic [2020] KEHC 9507 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MILIMANI

CRIMINAL DIVISION

CRIMINAL REVISION NO.241 OF 2019

HENRY MUMO OTONDO..........................................APPLICANT

VERSES

REPUBLIC...............................................................RESPONDENT

RULING

The Applicant, Henry Mumo Otondo was convicted of the charge of stealing a motor vehiclecontrary to Section 278A of the Penal Code. The trial court held that the prosecution was able to establish to the required standard of proof beyond any reasonable doubt that the Applicant, on 14th March 2014, at Kirima House along Muktar Daddah Street in Nairobi County, stole motor vehicle Registration No.KBK 153K Toyota Corolla NZE valued at Kshs.750,000/- the property of John Gitonga Ndiritu. The Appellant was sentenced to serve four (4) years imprisonment on 29th May 2019.

The Applicant was aggrieved by the sentence that was meted on him. He is not challenging his conviction. He filed an application before this court seeking to have the period of two (2) years and (5) five months that he spent in remand custody while awaiting the conclusion of the trial to be taken into account in determining the custodial sentence that he is to serve. The Applicant told the court that he was remorseful and regretted the offence that he committed. He was a first offender. He was suffering from hypertension and diabetes that has meant that he is constantly in hospital seeking medical attention. He is the sole breadwinner of his family. He claimed that his children were at risk of being sent away from school due to his incarceration. Mr. Momanyi for the State was not opposed to the application but left the issue of sentence to the court.

This court has carefully considered the Applicant’s plea for sentence revision. The Applicant has invoked the provisions of Section 333(2) of the Criminal Procedure Code seeking to have the period that he was in remand custody taken into consideration in determining the custodial term that he is to serve. In essence, the Applicant is saying that the trial court did not take this period into consideration when it sentenced him to serve the custodial sentence. The Court of Appeal in Ahmad Abolfathi Mohammed & Another Criminal  Appeal No.135 of 2016 (unreported) held thus at Page 28:

“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. 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.”

In the present appeal, it was clear to the court that indeed the trial court did not take into account this period when it sentenced the Applicant. Section 278A of the Penal Code provides that where an offender is convicted of a charge of theft of a motor vehicle, he was liable to serve a term of imprisonment of seven (7) years. In the present case, the Appellant was sentenced to serve four (4) years imprisonment upon conviction. If the period that he spent in remand custody is taken into consideration, the Applicant will have in effect been sentenced to serve six (6) years and five (5) months imprisonment.

Being a first offender, this would constitute a harsh and excessive sentence. While it is acknowledged that the motor vehicle that was stolen was not recovered, this court is of the view that the combined period of three (3) years and three (3) months that the Applicant has been in prison is sufficient punishment. The period that the Applicant has been in prison is equivalent to five (5) years imprisonment if the period of remission that the Applicant may have benefitted from is taken into account.

In the premises therefore, this court formed the view that the period that the Applicant has been in custody is sufficient punishment. He has paid his just debt to the society. The sentence that he is serving is commuted to the period served. He is ordered set at liberty forthwith and released from prison unless otherwise lawfully held. It is so ordered.

DATED AT NAIROBI THIS 12TH DAY OF MARCH 2020

L. KIMARU

JUDGE