Ombongi Manyara Bernard v Director of Public Prosecution [2021] KEHC 6218 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

MISC. CRIMINAL. APP.NO.110 OF 2020.

OMBONGI MANYARA BERNARD...........................................................APPLICANT

VERSUS

DIRECTOR OF PUBLIC PROSECUTION...........................................RESPONDENT

JUDGEMENT.

1. The applicant was convicted and sentence to serve a four years’ imprisonment from 9th April 2020 for an offence of stealing by servant under Criminal Case no. 3254 of 2015. He did not prefer any appeal thereafter. He has filed this application dated 14th September 2020 under the Provisions of Section 333 of the Criminal Procedure Code.

2. In his supporting affidavit he deponed that the trial court did not consider the period he served in custody while he was going through the motions of trial. He said that this was a breach of Section 333(2) of the Criminal Procedure Codewhich he asked this court to remedy.

3. When the application came up for hearing the learned state counsel left it to the discretion of this court.

4. Section 333(2) of the Criminal Procedure Code states as follows;

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 above section compels the trial court to take into consideration the period an accused took while in custody at the time the trial was on. Parliament in my view took into consideration the fact that whichever way the proceedings went on, the fact that an accused was incarcerated meant that he was already serving a term so to speak.

6. The above position however must be considered on a case to case basis. In the instant matter the record showed that the applicant jumped bail from 31st October 2016 till 9th October 2018 a period of about two years. In fact, the proceedings of 9th October 2018 clearly shows the efforts the respondent took to apprehend him.

7. The applicant had nothing to say and this clearly showed that he deliberately absconded and were it not for the efforts of the police he may not have turned up in court. Even before this date the way the matter proceeded was already suspect. The original court file for instance disappeared until a skeleton one was opened. Before this the applicant at some point jumped bail only for the bond to be reinstated when he produced some medical records.

8. All in all, the applicant cannot benefit from the provisions of Section 333 above. The trial court although it may not have indicated, was alive to the mischief played by the applicant. His unexplained disappearance for about two years shows that he was a person of questionable character. By jumping bail, the same was already an offence. Had he been in custody continuously, this court would have considered otherwise.

9. For now, the application is denied. Let the applicant serve the full period as directed by the trial court.

DATED SIGNED AND DELIVERED VIA VIDEO LINK AT NAKURU THIS 14TH JUNE 2021.

H.K. CHEMITEI

JUDGE.