Ng’ang’a v Republic [2022] KEHC 12890 (KLR)

Ng’ang’a v Republic (Miscellaneous Criminal Application E102 of 2021) [2022] KEHC 12890 (KLR) (6 September 2022) (Ruling)

Neutral citation: [2022] KEHC 12890 (KLR)

Republic of Kenya

In the High Court at Naivasha

Miscellaneous Criminal Application E102 of 2021

LN Mutende, J

September 6, 2022

Between

Joseph Kinyanjui Ng’ang’a

Applicant

and

Republic

Respondent

Ruling

1. Joseph Kinyanjui Ng’ang’a, the applicant, was convicted for the offence of rape contrary to section 3(1) (a) (c) (3) of the Sexual Offences Act.

2. Following the conviction the applicant was sentenced serve ten (10) years imprisonment.

3. Through an application filed herein on April 13, 2021, the applicant seeks review of the sentence. He seeks this court’s intervention pursuant to the provisions of section 333(2) of the Criminal Procedure Code.

4. The power of this court in its revisionary jurisdiction is founded under section 362 of theCriminal Procedure code, the law enacts that:“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. 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. The Judiciary sentencing policy guidelines provide that:“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.”

7. The record confirms that the applicant was in remand during trial and the court did not expressly state that the period spent in custody prior to sentencing was taken into account; this was an irregularity that warrants revision.

8. In the premises, the application succeeds. The applicant will serve the sentence with effect from the date of arrest, the May 17, 2015.

9. It is so ordered.

DELIVERED AND SIGNED AT NAIVASHA THIS 6TH DAY OF SEPTEMBER 2022. L. MUTENDEJUDGE