Jkw v Republic

that the proceedings were irregular or in violation of his right or fundamental freedom. The respondent further states that the applicant has made generalized reasons which do not suffice interference with the discretion of the trial court in sentencing or warrant upsetting the sentence imposed by the trial court. 5. The respondent argues that both the mitigating and aggravating circumstances were considered but the aggravating circumstances outweighed the mitigating circumstances. The respondent further argues that the victim who was his daughter was only 5 years old and he breached her trust and took advantage of her vulnerability by violating her which was a very traumatic experience. Furthermore, the applicant has the duty of care and responsibility as the father upon the victim but he traumatised her for life. 6. The respondent states that the offence which the applicant was found guilty is a felony which carries a sentence of not less than twenty years which can be enhanced to life imprisonment where the victim is less than 18 years. Furthermore, the trial court was very lenient as he was not sentenced to life imprisonment as the victim was aged five (5) years. The Law 7. This court is empowered by Article 165(6) of the Constitution of Kenya to review a decision by a subordinate court. Article 165(6) provides:The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court. 8. The record shows that the applicant was charged before the Chief Magistrate with two counts: Count I was the offence of incest contrary to Section 20 (1) of the Sexual Offences Act. Count II was the offence of cruelty to a child contrary to Section 127 of the Children Act. The applicant was convicted of Count I and acquitted of Count II. He was sentenced to twenty (20) years imprisonment. Being aggrieved by the conviction and sentence, the applicant appealed to the High Court in Thika Criminal Appeal No. 35 of 2023 but withdrew the said appeal on 9th December 2024. 9. Article 50 of the Constitution prohibits review where a convict has gone through an appeal process. It provides:(2) Every accused person has the right to a fair trial, which includes the right:- (q) If convicted, to appeal to, or apply for review by a higher court as prescribed by law. 10. In the instant matter the applicant did not go through appeal against the decision of the trial court. As such, the application for review is properly before the court. 11. Section 333(2) of the Criminal Procedure Code provides:“ 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.” 12. It is clear from the above proviso that the law requires courts to take into account the period the convict spent in custody. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17630/eng@2025-11-27 2

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13. The provisions of Section 333(2) of the Criminal Procedure Code was the subject of the decision in Ahamad Abolfathi Mohammed & Another vs Republic [2018]eKLR where the Court of Appeal held that:“ The second is the failure by the court to take into account in a meaningful way, the period that the appellants had spent in custody as required by section 333(2) of the Criminal Procedure Code. By dint of section 333(2) of the Criminal Procedure Code, the court was obliged to take into account the period that they had spent in custody before they were sentenced. 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. 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. We find that the first appellate court misdirected itself in that respect and should have directed the appellants’ sentence of imprisonment to run from the date of their arrest on 19th June 2012.” 14. The same court in Bethwel Wilson Kibor vs Republic [2009]eKLR 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 22nd September 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.” 15. According to The Judiciary Sentencing Policy Guidelines: “ 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.” 16. The applicant was arrested on 24th July 2018 and upon taking of plea, the trial court granted him bond of Kshs. 500,000/- with one surety of similar amount but there is no evidence of release. There is no indication in the original record that the applicant was released on bond following the court’s https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17630/eng@2025-11-27 3

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order. The trial court delivered its judgment and sentenced the applicant on 14th November 2019. Thus the applicant spent one (1) year and three (3) months in custody. By virtue of Section 333(2) of the Criminal Procedure Code, this duration ought to have been considered during sentencing. Notably, the applicant has not contested the sentence. He seeks to have the duration spent in custody taken into account which is supported by the law. 17. I have perused the court record and noted that during sentencing, the trial court took into account the mitigation of the applicant as well as the age of the victim. The trial court further considered the relevant provisions of law and then sentenced the applicant to twenty (20) years imprisonment as provided in Section 20(1) of the Sexual Offences Act. It is however evident that the trial court was silent on the issue of the duration the applicant spent in remand. The trial court was bound under the law to consider the period spent in custody which was not done. This court shall proceed to consider the said period as provided for under Section 333 (2) of the Criminal Procedure Code. 18. In the second limb of the application, the applicant seeks for review of sentence based on the circumstances of the case and other mitigating factors which he has not specified. 19. The penalty for the offence of incest has been provided in Section 20(1) of the Sexual Offences Act which indicates: Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years; Provided that, if it is alleged in the information or charge and proved that the female person is under the age of eighteen years, the accused shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person. 20. In the instant case, the victim was a daughter of the applicant and was five years old at the time of the offence. The sentence meted by the trial court is within the law and is not excessive. 21. I find the application dated 14th February 2025 partially successful and hereby make the following orders: a. 22. That the applicant shall serve twenty (20) years imprisonment to commence from the date of arrest, 24th July 2018. It is hereby so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 27TH DAY OF NOVEMBER 2025. F. MUCHEMI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17630/eng@2025-11-27 4

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