Njuguna v Republic [2022] KEHC 17208 (KLR)

Njuguna v Republic (Criminal Revision E105 of 2022) [2022] KEHC 17208 (KLR) (Crim) (10 November 2022) (Ruling)

Neutral citation: [2022] KEHC 17208 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Revision E105 of 2022

JM Bwonwong'a, J

November 10, 2022

Between

Stanley Kinyanjui Njuguna

Applicant

and

Republic

Respondent

(Being an application for revision of the sentence imposed by Hon. Z. Abdul S.R.M, on 18{{^th}} November 2021 in Milimani Chief Magistrates Court in Criminal Case No. 1357 of 2018 Republic vs Stanley Kinyanjui Njuguna))

Ruling

1. The applicant was charged with two counts of the offence of obtaining money by false pretences contrary to section 313 of thePenal Code (cap 63) Laws of Kenya.

2. He pleaded not guilty on both counts and after a full trial, he was convicted on both counts.

3. He was sentenced to pay a fine of Kshs 200,000/= in default to serve a term of one (1) year imprisonment in count 1. In count II, he was sentenced to pay of fine of Kshs 300,000/- in default to serve one-year imprisonment.The sentences were ordered to run consecutively.

4. Pursuant to section 362 as read with section 364 of the Criminal Procedure Code (cap 75) Laws of Kenya, he has now approached this court vide a notice of motion seeking a revision of his sentence to consider the time served as sufficient. The application is supported by an affidavit sworn by the applicant on the grounds that since his incarceration, his health has deteriorated due to an operation that he underwent at Kenyatta National Hospital before his arrest. He is required to attend physical therapy at least twice a week. The prison facilities lack adequate medication. He will greatly benefit from home-based care to avoid triggering factors that may predispose him to future developments of terminal illnesses.

5. In addition, he is a father of four (4) school-going children, who solely depend on him and his wife is currently unemployed. His aging sick mother, who is a widow also depends on him for upkeep and has been undergoing difficulties since his incarceration.

6. Furthermore, while in prison he has undergone basic training in the Prison Fellowship Classes and Clean Start Organisation. This has helped him to learn the consequences of crime and he will not engage in criminal activities again.

7. He has urged the court to revise his sentence and consider the one and a half years served as adequate punishment and also order that the sentence starts to run from the date of arrest on January 7, 2021. The parties did not file submissions.

Issues For Determination 8. I have considered the application, the averments thereto and the applicable law. The issue that arises for determination is whether the applicant has made out a case for the grant of the orders sought

Analysis And Determination 9. While the application is premised on the provisions of section 333 (2) of the Criminal Procedure Code, it invokes the revisional 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.”

10. In this regard, section 333 (2) of the Criminal Procedure Code (cap 75) Laws of Kenya 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.”

11. I have perused the proceedings of the trial court. The applicant was arrested on September 4, 2019 and was arraigned in court on September 5, 2019. He applied for and was released on bail/bond. On January 7, 2021, the applicant’s bond was cancelled by the court due to non -compliance with the terms.

12. He remained in custody until he was convicted on November 18, 2021. At this point he was sentenced to pay a fine of Kshs 200,000 in default to serve a term of one (1) year imprisonment in count 1 and in count II, he was sentenced to pay of fine of Kshs 300,000, in default to serve one-year imprisonment.

13. The sentences were to run consecutively. Cumulatively he was sentenced to pay a fine of Kshs 500,000 and in default serve a prison term of two (2) years. He was in pre-trial remand custody for 10 months and 11 days.

14. In sentencing the applicant, the trial court considered the mitigation by the applicant. The court also took into account the fact that the complainants lost a colossal amount of money. She then proceeded to sentence the applicant as indicated and the right to appeal was explained.

15. From the record, it is clear that the trial court did not consider the time the applicant was in pre-trial remand during his trial. In this regard, the Court of Appeal in Ahmed Abolfathi Mohamed v Republic[2018] e-KLR, 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 June 19, 2012. ”

16. The Judiciary Sentencing Policy Guidelines also in that regard provide as follows:“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.”

17. In view of the foregoing authorities, I find that the trial court did not take into account the said period in sentencing the applicant. The said period ought to have been taken into consideration.

18. The application succeeds with the result that the applicant will now serve two (2) years imprisonment less ten months (10) and 11 days

19. The sentence will commence from the date of conviction being November 18, 2021.

Ruling signed, dated and delivered in open court at Nairobi this 10th day of November 2022. J M BWONWONG’AJUDGEIn the presence of-Mr. Kinyua court assistantThe applicant in personMs Chege for the respondent