Yataba v Republic [2022] KEHC 13662 (KLR)

Yataba v Republic (Miscellaneous Criminal Application 61 of 2020) [2022] KEHC 13662 (KLR) (7 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13662 (KLR)

Republic of Kenya

In the High Court at Kakamega

Miscellaneous Criminal Application 61 of 2020

PJO Otieno, J

October 7, 2022

Between

Bonface Atondola Yataba

Applicant

and

Republic

Respondent

Ruling

1. By a Notice of Motion dated 17. 11. 2022, the Applicant merely seeks that the sentence meted out and imposed against him by the Court of Appeal in a second appeal emanating trial court in Kakamega CMCCR. Case No. 1538 of 2011 be made to start running from the date of arrest or arraignment in Court.

2. I have perused the proceedings availed to Court in Court of Appeal Criminal Appeal No. 26 of 2016 file. The proceedings read that the Applicant was charged with two counts of Robbery with violence contrary to section 296 (2) of the Penal Code, was tried, convicted and on the 7. 1.2014 sentenced to suffer death.

3. His appeal to the High Court was dismissed for what the Judge termed lack of merits. He preferred a second appeal to the Court of Appeal and the Court of Appeal while upholding the conviction substituted the death sentence with an imprisonment term of 25 years. The sentence was decreed to be computed from the date of the conviction.

3. It is that sentence the Applicant now seeks to be computed from the date of arraignment before the trial Court in accordance with section 333 (2) of theCriminal Procedure Code.

4. The application presents no much difficult in so far as it invokes the statutory stipulation which dictates how to impose and compute and imprisonment term where the accused remains in custody pending trial. Section 333 (2) of the Criminal Procedure Codeprovides:-“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 subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.”

5. The provision has been interpreted by the Superior Courts to be imperative and compelling upon a Court while imposing an imprisonment term. InAhmed Abulfathi Mohammed & Another –vs- Republic [2018] eKLR, the court of appeal said of the need to reckon with period spent in custody as follows:-“Although the learned Judge stated that he had taken into account the period the appellants had been in custody, he ordered that their sentence shall take effect from the date of their conviction by the trial court. With respect, there is no evidence that the court took into account the period already spent by the appellants in custody. “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.”

6. Being guided by the law as settled by the Court of Appeal, it is directed and ordered the jail term of twenty five (25) years imposed against the Applicant shall be reckoned with from the 29. 7.2011 when the Applicant was arraigned before the Court.

7. The application is therefore allowed.

DATED, SIGNED AND DELIVERED AT KAKAMEGA, THIS 7TH DAY OF OCTOBER, 2022. PATRICK J. O. OTIENOJUDGEIn the presence of:No appearance for the ApplicantMs. Chala for the RespondentCourt Assistant: Polycap Mukabwa