Koech v Republic [2022] KEHC 14222 (KLR)

Koech v Republic (Criminal Appeal E009 of 2022) [2022] KEHC 14222 (KLR) (14 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14222 (KLR)

Republic of Kenya

In the High Court at Kericho

Criminal Appeal E009 of 2022

AN Ongeri, J

October 14, 2022

Between

Morgan Kipkorir Koech

Applicant

and

Republic

Respondent

Ruling

1. The application coming for consideration in this ruling is the one dated 23/1/2022 seeking for orders that the period of one year and eleven months the Applicant spent in custody from 02/02/2015 when he was charged until 17/01/2017 when he was sentenced to be reduced from the sentence of 15 years imprisonment.

2. The Appellant was sentenced to death on 17/01/2017 for the offence of robbery with violence contrary to section 296 (2) of the penal code.

3. The Applicant appealed against the sentence and conviction to the high court and the appeal was dismissed but the sentence was reduced to 15 years imprisonment in HCRA No.4 of 2017.

4. I allow the application for the inclusion of the period he was in custody in the computation of the 15 years jail term in accordance with the proviso to Section 333 (2) of the Criminal Procedure Code CAP 75 which states as follows:-“(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.”(Emphasis mine)

5. The duty to factor in the time spent in custody during sentencing is also contained in the Judiciary Sentencing Policy Guidelines (under clauses 7. 10 and 7. 11) where it is provided that: -“The proviso to section 333 (2) of the Criminal Procedure Codeobligates 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.”

6. The duty of the court to take into account the period an accused person had remained in custody in sentencing under section 333 (2) of the Criminal Procedure Code has been acknowledged in several cases in the High Court and the Court of Appeal in Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR. (see also Bethwel Wilson Kibor v Republic [2009] eKLR).

7. The Application dated 23/1/2022 is accordingly allowed.

8. The period of 15 years to start from 02/02/2015 and not from 17/01/2017.

Orders to issue accordingly

DELIVERED, DATED AND SIGNED AT KERICHO THIS 14TH DAY OF OCTOBER, 2022. A. N. ONGERIJUDGE