Noah Kipkemei Rugut v Republic [2022] KEHC 2717 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT ELDORET

CRIMINAL PETITION NO.77 OF 2020

IN THE MATTER OF ENFORCEMENT OF BILL OF RIGHTS AS UNDER ARTICLES  20 (1), 22 (1), 27 (1) (2) (4), 23 (1), 25 (C), 50 (1) (2), 51 (1) (2), 159 (2), (A), (B), 165 & 258 OF THE CONSTITUTION OF KENYA 2010

AND

IN THE MATTER REVIEW OF SENTENCE AS UNDER SECTION 362, 364 (1) & 365 AND SECTION 333 (2) OF THE CPC CAP 75 LAWS OF KENYA

BETWEEN

NOAH KIPKEMEI RUGUT............................................. PETITIONER

VERSUS

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

JUDGMENT

1. The petitioner was convicted of the offence of defilement contrary to section 8 (1) as read with section 8 (3) of the Sexual Offences Act.  He was sentenced to 30 years imprisonment on 3rd February 2015.

2. Being dissatisfied with the decision of the trial court, the petitioner lodged an appeal at the High Court of Kenya at Eldoret vide Criminal Appeal No.32 of 2015.  The High Court upheld the conviction and confirmed the sentence.

3. The petitioner has now filed the instant petition alleging violation of his rights as the period he had been held in custody prior to him being sentenced was not taken into account while computing the sentence.  He is also praying that his sentence be reduced to more reasonable terms as he has since been rehabilitated and reformed.

Section 333 (2) of the Criminal Procedure Code provides:

“1. A warrant under the hand of the judge or magistrate by whom a person is sentenced to imprisonment, ordering that the sentence shall be carried out in any prison within Kenya, shall be issued by the prison and to all other persons for carrying into effect the sentence described in the warrant, not being a sentence of death.

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, 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.”

4. It is therefore mandatory that the period during which an accused has been in custody prior to being sentenced be taken into account in computing the period of the sentence.  The petitioner was in remand custody for a period of one year before conviction but this period was not factored in by the trial court in computing the sentence.

5. Therefore this petition succeeds only to that extent that the period of 30 years sentence shall be shortened by the one year the petitioner was in remand.

6. With regard to the petitioner’s prayer to have the sentence reviewed to reasonable terms, the petitioner has not exhausted his appeal.  The High Court Judge, Hon. D. K. Kemei properly exercised his discretion in confirming the sentence, and this court cannot therefore review the sentence as it is a court of similar jurisdiction.  The petitioner’s recourse now lies with the Court of Appeal which can hear his appeal against sentence.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 2ND DAY OF FEBRUARY 2022.

E. O. OGOLA

JUDGE