Patrick Wangai Gichuhi v Republic

5. The Applicant was allowed an opportunity to mitigate after which he was sentenced to serve two years imprisonment on each count without the option of a fine. The Sentences were to run concurrently. 6. The applicant filed an application seeking review of sentence. 7. The court is empowered by Article 165(6) of the Constitution of Kenya 2010 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. Section 333(2) of the Penal Code Cap 63 Laws of Kenya provides 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, been held in custody, the sentence shall take account of the period spent in custody.” [Own emphasis] It is clear from the above proviso that the law requires courts to take into account the period the convict spent in custody. 9. The provisions of Section 333(2) of the Criminal procedure Code were considered in this case of Ahamad Abolfadhi Mohammed & Another vs Republic [2018] eKLR where the Court of Appeal held as follows:“ 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 didn’t 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 sentences 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 he 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 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 332 (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 appellant’s sentence of imprisonment to run from the date of their arrest on 19th June 2012.” [Own Emphasis] https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18123/eng@2025-12-05 2

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10. The Judiciary Sentencing Policy Guidelines clauses 7:10 and 7:11 state that:“ The proviso to section 332(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.” 11. I have carefully perused the record of proceedings in the Lower Court. I am satisfied that the trial was properly conducted and the Applicant was allowed an opportunity to cross-examine all the witnesses. Upon conviction the Applicant was granted an opportunity to mitigate and a pre-sentence report was filed. The sentence imposed was lawful and was appropriate. I have no inclination to interfere with the same. 12. In sentencing the trial court did take note of the period of time the Applicant had spent in remand custody. The magistrate noted that “ The accused has been in custody from the date of arrest on the 28th of March 2024. The accused has spent 1 year and 11 days in custody.” 13. Despite this notice the court did not when imposing sentence direct that the sentence be reduced proportionally as required by the Ahmed Abolfadhi Mohammed case. In the premises this court directs that the two (2) year term of imprisonment imposed on the Applicant shall run from 2nd April 2024 being the date of plea. It is so ordered. DATED IN NYERI THIS 5TH DAY OF DECEMBER 2025. ....................................... MAUREEN A. ODERO JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18123/eng@2025-12-05 3

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