Patience Gageche Gold v Republic

of the Criminal Procedure Code, the period he had spent in remand prior to conviction forms part of the sentence to be reckoned with. 3. That accumulatively she had been in custody for approximately eight (8) years as at the date hereof and that under section 46 of the Prison Act, as prisoner of good conduct is entitled to remission not exceeding one-third of the sentence sand that having maintained exemplary conduct and discipline throughout her incarceration, she was qualified for remission of not less than five years. 4. It was contended that she had actively embraced rehabilitation and reformation throughout the eight years and if the remission of five years was taken into account, she effectively remains with a balance of two years and therefore her continued incarceration was unduly punitive infringes upon her inherent right to human dignity under Article 28 of the constitution. 5. She deposed further that the court has jurisdiction under articles 22, 23 and 165 of the constitution to grant the relief sought. 6. It seems that the said matter filed at the criminal registry at Milimani was transferred to this registry without the original appeal file, wherein I believe the applicant wanted this application to be placed. 7. When this application was filed at this criminal registry it was given a new number and registered as Misc. Criminal Application, it was not certified as urgent, the applicant having made a similar application before this court which dismissed 8. In response to the application the respondent filed submissions wherein it was contended that the applicant filed an appeal to this court being Criminal Appeal no E196 of 2019 where this court upheld the sentence and dismissed the appeal. It was contended that the applicant recourse now lies with the Court of Appeal as this court cannot review and or revise the sentence of a court of concurrent jurisdiction, in support of which the decision of the court in Daniel Otieno Oracha v Republic [2019] eKLR was tendered. 9. The applicant through her Advocate on record stated that they had filed written submissions but as at the time of writing this ruling, there were no written submissions on record. Determination 10. It is not disputed that the applicant filed an appeal to this court sitting at the High Court at Milimani being Criminal Appeal No E196 of 2019 and in dismissing the said appeal the court had this to say, “I find that the said sentence legal, proper and within the law. I therefore find no reason to interfere with the same “ 11. What is not clear from the affidavit by the applicant is whether the same filed an appeal to the court of Appeal and if so what was the outcome thereof. The applicant having approached this court in equity was duty bound to make full disclosure. 12. The applicant made a second attempt at securing early release to this court on sentence review in a Constitutional Petition no E002 of 2025 in which he sought similar orders which petition was similarly dismissed by the court on 4th May 2025. She made a further attempt to this court in Misc. Application No E154 of 2025 which was withdrawn on 22nd October 2025 so as to enable her proceed this application 13. Whereas the applicant’s best recourse would have been to file an appeal to the Court of appeal and not to appeal against the court decisions stated herein to the same court on the grounds that section 333(2) of the CPC was not considered, the applicant has produced before the court a ruling by Justice D https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19364/eng@2025-12-17 2

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Kaveza dated 26th November 2024 in respect of the applicants co-accused Chukwu Onzoemana James v Republic Criminal Appeal No 34 of 2024 at Kibera where the court had this to say: “ 3. The provision to section 333(2) of the Criminal Procedure Code obliges the court to consider the time already spent in custody. The duty to take in account the period an accused person had remained in custody in sentencing under the proviso to section 333(2) of the Criminal Procedure Code which is couched in mandatory terms was acknowledged by the court of Appeal in Ahamed Abolfathi Mohamed & another v Republic [2018] e KLR and more recently in the High Court case of Vincent Sila Kibor & 67 others v Kenya Prison Service &2 others [2021] eKLR. 4. It is therefore clear that it is mandatory that the period which accused has been held in custody prior to being sentenced be considered in meting out the sentence where it is not hindered by other provision of the law. 5. From the record the appellant was arrested on 23rd June 2017 and spent the entirety of the trial in custody. This period was not considered by the trial court and this court on appeal. 6. Guided by the law, the period ought to be considered, in the premises the application is allowed. The sentence imposed shall run from 23rd June 2017 the date the applicants arrest pursuant to section 333(2) of the Criminal Procedure Code.” 14. It is not disputed that the applicant herein was charged together with the applicant in the case under reference and therefore shall give the applicant the benefit of doubt in equal treatment , in the absence of the records of the trial before the lower court that the period served in remand custody was not taken into account as confirmed by the court in Criminal appeal No 34 of 2024 Kibera and therefore allow the applications to the extent that the applicants sentence herein shall run from the 23rd of June 2017. 15. The issue of remission under section 46 of the prison Act is not a judicial function but an administrative action by the prison department. However, the applicant is entitled to the same. 16. In the final analysis in view of the determination by this court in Kibera Criminal Appeal no 34 of 2024, to the extent that the applicants co- accused was not granted the period served in remand, I allow the application herein to the extent that the applicants sentence mated by the trial court in Criminal Case No 136 of 2017 at JKIA shall run from 23rd June 2017 subject to remission if any. 17. And it is ordered. DATED SIGNED AND DELIVERED THIS 17th DAY OF DECEMBER 2025 J. WAKIAGA JUDGE In the presence of Court assistant – Irene Ms. Kariuki for the state Ms. Kojienda for the accused persons https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19364/eng@2025-12-17 3

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