Omau v Republic [2023] KEHC 23763 (KLR)

Omau v Republic (Criminal Revision E015 of 2023) [2023] KEHC 23763 (KLR) (19 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23763 (KLR)

Republic of Kenya

In the High Court at Nyamira

Criminal Revision E015 of 2023

WA Okwany, J

October 19, 2023

Between

Rodgers Nyamota Omau

Applicant

and

Republic

Respondent

(From the Original Conviction and Sentence of Hon. W. C. Waswa – RM dated 16th February 2022 in the original Nyamira CMC Sexual Offence Case No. 19 of 2021)

Ruling

1. The applicant herein, Rodgers Nyamota Omau, was charged with the offence of Gang Rape contrary to section 10 of the Sexual Offences Act.

2. In a judgment delivered by the trial court on December 21, 2021, the applicant was found guilty of the said offence of Gang Rape after which he was convicted and sentenced to serve fifteen (15) years imprisonment.

3. Through the application filed on or about April 4, 2023, the applicant seeks a review of his sentence under section 333 (2) of the Criminal Procedure Code on the basis that the trial court did not take into account the period that he had spent in remand custody while passing the sentence. The said section stipulates as follows: -Subject to the provisions of section 38 of the Penal Code, 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 sub section (1) has prior, to such sentence shall take account of the period spent in custody.

4. It is clear from the above proviso that the law requires courts, while sentencing, to take into account the period the accused spent in custody.

5. In Bethwel Wilson Kibor v Republic[2009] eKLR the court expressed itself as follows: -“By proviso to section 333(2) of the Criminal Procedure Code where a person sentenced has been held in custody prior to such sentence, the sentence shall take into account of the period spent in custody. Ombija J, who sentenced the appellant did not specifically state that he had taken into account the 9 years period that the appellant had been in custody. The appellant told us that as at September 22, 2009 he had been in custody for 10 years and one month. We think that all these incidents ought to have been taken into account in assessing sentence. In view of the foregoing, we are satisfied that the appellant has been sufficiently punished. We therefore allow this appeal and reduce the sentence to the period that the appellant has already served. He is accordingly to be set free forthwith unless otherwise lawfully held.”

6. The Judiciary Sentencing Policy Guidelines speaks to the provisions of section 333 (2) as follows:“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 trail. 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. In the present case, a perusal of the lower court record reveals that the applicant was first arraigned before the trial court on January 5, 2021 when he took plea and that the case was concluded on February 16, 2022 when he was sentenced to 15 years imprisonment.

8. A perusal of the judgment of the lower court reveals that the trial Magistrate did not, in passing the sentence, consider the period that theapplicant spent in custody while awaiting trial.

9. Mr. Chirchir, Learned Counsel for the respondent did not oppose the application and was of the view that the period that the applicant spent in custody should be computed and deducted from the prison term of 15 years.

10. Consequently, I find that the instant application is merited.

11. I order that the 15 years’ prison sentence imposed on the applicant by the trial court shall run or be computed from the date when he first appeared in court, being January 5, 2021.

12. It is so ordered.

RULING DATED, SIGNED AND DELIVERED AT NYAMIRA VIA MICROSOFT TEAMS THIS 19TH DAY OF OCTOBER 2023. W. A. OKWANYJUDGE