Isaac Murimi Muthuke v Republic

the recent decisions of the Supreme Court have held that life imprisonment is legal and not in contravention of the Constitution in defilement cases. 6. Parties put in written submissions. The Applicant’s Submissions. 7. The applicant submits that he is satisfied with the sentence of twenty years meted against him however the trial court did not take into consideration the time he spent in custody as he was arrested on 7th May 2014 and was convicted on 24th January 2018, which is a period of three (3) years and eight (8) months. To support his contentions, the applicant relies on Section 333(2) of the Criminal Procedure Code and the cases of Omukanga vs Republic (Criminal Appeal No. 260 of 2019) [2023] KECA 430 [KLR], Ahamad Mohammed & Another vs Republic [2018] eKLR and Bethwel Wilson Kibor vs Republic [2009] eKLR. The Respondent’s Submissions 8. The respondent reiterates what she has deponed in her affidavit and submits that the instant application is an abuse of the court process and ought to be dismissed. To support her submissions the respondent cites the decisions in Supreme Court Petition No. E002 of 2024 Republic vs Evans Nyamari Ayaki and Supreme Court Petition No. E013 of 2024 Republic vs Julius Kitsao Manyeso. The Law 9. The applicant herein was convicted for the offence of defilement by the trial court in Thika CM Criminal Case No. 1797 of 2014 and sentenced to twenty (20) years imprisonment. He appealed to the High Court in Kiambu being Criminal Appeal No. 41 of 2020 and the appeal was withdrawn pursuant to the applicant’s own application. The applicant seeks to have the time spent in custody to be considered under Section 333(2) of the Criminal Procedure Code. 10. 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.” 11. It is clear from the above proviso that the law requires courts to take into account the period the convict spent in custody. 12. 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19788/eng@2025-06-26 2

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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.” 13. 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.” 14. 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.” 15. 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. 16. The applicant says that the period he spent in custody which is not stated should be taken into consideration to reduce his sentence of 20 years imprisonment for the reason that the trial court did not comply with Section 333 (2) of the Criminal Procedure Code. 17. Relying on the recent Supreme Court Petition of Republic vs Evans Nyamai where the Supreme Court held that the only lawful sentence for defilement under Section 8(2) is life imprisonment sentence thus leaving no room for review by a higher court. The Supreme Court in the case of Republic vs Julius Manyeso (2024)…. decisions reinstated sentences of life imprisonment reviewed by the Court of Appeal and the High Court earlier. The applicant here was sentenced to twenty (20) years imprisonment at the period when jurisprudence in Court of Appeal cases was being applied by the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19788/eng@2025-06-26 3

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magistrates courts and the Superior Courts. He got his bite of the cherry and he would better enjoy it since that session has passed. Had this been an appeal, the court would have enhanced sentence. 18. I find this application improperly before the court and hereby strike it out. 19. It is hereby so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 26TH DAY OF JUNE 2025. F. MUCHEMI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19788/eng@2025-06-26 4

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