Benson Andimu Nyandoro v Republic

Abolfathi Mohammed & Another vs Republic (2018) eKLR and Musyiki Lemoya vs Republic [2014] eKLR and submits that the trial court did not consider the time he spent in remand. The Law 6. The applicant has come to this Honourable court by way of review provided for under Article 50 of the Constitution. 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. 7. The above provision does not provide for review of sentence where a convict has gone through the appeal process. In the instant matter the applicant has not appealed against the decision of the trial court and thus the application for review is proper before the court. 8. 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.” 9. It is clear from the above proviso that the law requires courts to take into account the period the convict spent in custody. 10. 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.” 11. 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:- https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19800/eng@2025-09-09 2

page 2 of 3

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. 12. Despite the right to have the period spent in custody during trial being taken into account, recent Supreme Court decisions on review of sentence of defilement under Section 8 have come into play in criminal jurisprudence of this country. In the Supreme Court Petition of Republic vs Julius Manyeso Petition No. E013 of 2024, the appellant was charged with defilement of a girl aged 4½ years. He was convicted and sentenced to life imprisonment. On first appeal the conviction and sentence were upheld. The Court of Appeal, on 2nd appeal reviewed the sentence to 40 years imprisonment. The Supreme Court in Petition No. E013 of 2024 held that sentences on defilement cases must be in accordance with Section 8 of the Sexual Offences Act and reinstated the life imprisonment sentence. The 40 years imprisonment sentence was set aside. 13. In the case before me, the sentence of 15 years imprisonment imposed by the Ruiru Magistrate was contrary to Section 8 of the Sexual Offences Act. Had this been an appeal, this court would have enhanced the sentence to life imprisonment based on Section 394 of the Criminal Procedure Code. The applicant must consider himself lucky to have been given the 15 years imprisonment sentence. It is my considered view that no legal basis of reviewing the said sentence has been established. 14. Consequently, I find this application misconceived and incompetent and I hereby strike it out. 15. It is hereby so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 9THDAY OF SEPTEMBER 2025. F. MUCHEMI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19800/eng@2025-09-09 3

page 3 of 3