Nyandika v Republic [2022] KEHC 13990 (KLR)

Nyandika v Republic (Criminal Petition 7 of 2020) [2022] KEHC 13990 (KLR) (7 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13990 (KLR)

Republic of Kenya

In the High Court at Kericho

Criminal Petition 7 of 2020

AN Ongeri, J

October 7, 2022

Between

Edwin Nyambige Nyandika

Petitioner

and

Republic

Respondent

Ruling

1. The petitioner and his co accused were sentenced to death by the trial court for the offence of murder in Kericho High Court Criminal Case no 37 of 2008 Republic v Edwin Nyambige Nyandika, Charles Mamboleo Onyando and Evans Machuka Benard on November 4, 2009.

2. At the time of the conviction and sentence, the death penalty for those convicted with murder was mandatory. However, following the Supreme Court holding in Francis Karioko Muruatetu & Anor v Republic Petition no 15 of 2015 declaring the mandatory nature of the death penalty unconstitutional, the petitioner and his co accused filed Criminal Petition no 1A of 2018 Edwin Nyambige Nyandika, Charles Mamboleo Onyando and Evans Machuka Benard v Republic for re-sentencing and that the court factor in the time they had spent in custody since 2008.

3. On March 10, 2020, the court set aside the death sentence imposed on each petitioner and each of the petitioners was sentenced to 18 years imprisonment from the date on which they were sentenced by the trial court.

4. Subsequently, the 1st petitioner has come to this court seeking for inclusion of the period he was in custody in the computation of the sentence of 18 years meted on March 10, 2020 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.”

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 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.”

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. Upon perusing the record, I find that the petitioner was arraigned in court on October 13, 2008 and he was sentenced to death on November 4, 2009.

8. The period of one year and one month the petitioner was in custody to be deducted from the period of 18 years imprisonment.

9. Orders to issue accordingly.

DELIVERED, DATED AND SIGNED AT KERICHO THIS 7TH DAY OF OCTOBER, 2022A N ONGERIJUDGE