Ephantus Marubu Kamau v Republic

5. At the hearing of the application, the applicant in his brief oral submissions reiterated that his only grievance with his sentence was that the trial court did not factor in the time he had spent in lawful custody prior to his conviction and sentence. He also added that he had a problem with his leg and urged the court to allow his application as prayed. 6. On her part, learned prosecution counsel Ms. Gakumu opposed the application and stated that the sentence imposed by the learned trial Magistrate was lawful as it was in accordance with the law. she contended that while passing sentence, the trial court considered both the aggravating and mitigating circumstances in the case and the sentence ought not to be disturbed. Counsel however conceded that according to the record of the trial court, the learned trial Magistrate when passing sentence did not indicate that he had taken into account the period the applicant had spent in lawful custody. 7. I have duly considered the application, the record of the trial court and the brief oral submissions made by both parties. Having done so, I find that the application invokes the revisional jurisdiction of this court which is provided for by Section 362 as read with Section 364 of the Criminal Procedure Code (CPC). 8. Section 362 of the CPC empowers this court to call for and examine the record of the lower court in criminal proceedings to satisfy itself as to the correctness, legality or propriety of any finding, sentence or order made by the trial court or the regularity of any proceedings before the trial court. 9. The applicant in this case has alleged that the period he had spent in lawful custody prior to his conviction and sentence was not factored into his sentence contrary to the requirement in the proviso to Section 333(2) of the CPC which states that; “ 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.” 10. A reading of the above provision shows that the requirement that trial courts should take into account the period a convict had spent in lawful custody prior to sentence was mandatory and failure to comply with it amounted to an error of law. 11. That said, i have perused the records of the trial court which shows that the applicant was arrested on 8th April 2019. He was arraigned in court on the following day and after denying the charges, he was granted a bond of Kshs.100,000 with one surety of a similar amount. He was however unable to comply with the bond terms and he remained in custody throughout his trial. This means that he was in custody for a period of about 2 years and 5 months prior to date he was sentenced. 12. Although the record shows that when passing sentence, the learned trial Magistrate did not expressly state that he had factored in the period the applicant had spent in lawful custody, the record indicates that when passing sentence, the learned trial Magistrate considered the mitigation that was put forward by the applicant which included a plea that the period he had spent in lawful custody be considered during sentencing. 13. Under Section 3(3) of the Sexual Offences Act, any person convicted of the ofience of rape is liable to imprisonment for a term of not less than ten years which may be enhanced to life imprisonment. This means that the ofience of rape attracted a minimum mandatory sentence of ten years imprisonment and the trial court did not have discretion to impose a lower sentence. The trial court was however https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19606/eng@2025-02-06 2

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bound to take into account the period the applicant had spent in lawful custody prior to his conviction and sentence. 14. The court of appeal in Ahamad Abolfathi Mohammed & Sayed Mansour Mousavi versus Republic [2018] KECA 743 (KLR) when interpreting the proviso to Section 333(2) of the Criminal Procedure Code stated as follows: “ ….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(s) 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.” 15. Although the learned trial Magistrate did not expressly say so, it is apparent that he took into account the period the applicant had spent in custody during the trial which was one of the mitigating factors advanced in the applicants plea in mitigation. This must be the reason the learned trial Magistrate imposed a sentence which was less than the minimum mandatory sentence prescribed by the law in count 1. And although the learned trial Magistrate reduced the applicant’s sentence by a period of 3 years instead of 2 years and 5 months which was the actual time he had spent in custody, I am disinclined to disturb the sentence given that the prosecution did not contest the same. 16. With regard to Count 2, the applicant was sentenced to one year imprisonment for the ofience of assault causing actual bodily harm. In my view, this sentence was not only lawful but was also very lenient considering that the law prescribes a maximum penalty of five years imprisonment. 17. Given the foregoing, I am of the considered view that the applicant has not demonstrated any mistake, irregularity or illegality committed by the learned trial Magistrate to justify revising his sentence. Consequently, I find that the application lacks merit and it is hereby dismissed. It is so ordered. DATED, SIGNED AND DELIVERED AT MURANG’A THIS 6TH DAY OF FEBRUARY, 2025. HON. C. W. GITHUA JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19606/eng@2025-02-06 3

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