Onchonga v Republic [2022] KEHC 10944 (KLR)

Onchonga v Republic (Miscellaneous Application E002 of 2022) [2022] KEHC 10944 (KLR) (17 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10944 (KLR)

Republic of Kenya

In the High Court at Kericho

Miscellaneous Application E002 of 2022

AN Ongeri, J

June 17, 2022

Between

Hesbone Mohammed Clement Onchonga

Applicant

and

Republic

Respondent

Ruling

1. The Applicant filed the undated Application on 15/1/2022 seeking to have the period he was remanded in custody deducted from the sentence meted against him.

2. The Applicant was sentenced to seven (7) years imprisonment for burglary and stealing contrary to section 304 as well as section 279 (b) of the penal code.

3. The Applicant was arraigned in court on October 24, 2018 and sentenced on 3/6/2019 after a period of eight months.

4. The period the Applicant was in custody ought to be deducted from the seven years imprisonment term meted against the Applicant.

5. Section 333 (2) of the Criminal Procedure Code provides 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.”

6. The court of appeal in Bethwel Wilson KiborvRepublic [2009] eKLR, stated as follows: -“By proviso to section 333(2) of Criminal Procedure Code where a person sentenced has been held in custody prior to such sentence, the sentence shall take account of the period spent in custody.”

7. In Ahamad Abolfathi Mohammed & AnothervRepublic [2018], the court of appeal expressed itself 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.”

8. I allow the Application filed on 15/1/2022 and direct that sentence starts to run from October 24, 2018 and not 3/6/2019.

DELIVERED, DATED AND SIGNED AT KERICHO THIS 17TH DAY OF JUNE 2022. A. N. ONGERIJUDGE