Kazungu v Republic (Criminal Appeal 8 of 2020) [2024] KECA 635 (KLR) (7 June 2024) (Judgment)
Neutral citation:
[2024] KECA 635 (KLR)
Republic of Kenya
Criminal Appeal 8 of 2020
AK Murgor, KI Laibuta & GV Odunga, JJA
June 7, 2024
Between
Furaha Charo Kazungu
Appellant
and
Republic
Respondent
(An appeal from the Judgement of the High Court of Kenya at Malindi (R. Nyakundi, J.) dated 3rd December 2019 in High Court Criminal Appeal No. 26 of 2019
Criminal Appeal 26 of 2019
)
Judgment
1.The appellant, Furaha Charo Kazungu, was tried in Malindi Chief Magistrate’s Court Criminal Case No. 705 of 2015 and convicted for the offence of Sexual Assault contrary to section 51) (a) (i) (2) of the Sexual Offences Act, No. 3 of 2006. The particulars were that, on the 10th day of October 2015 within Kilifi County, the appellant unlawfully used his finger to penetrate the anus of HSH, the complainant herein.
2.The case against the appellant was that the complainant had gone to the farm to collect some vegetables. While in the process of doing so, the appellant accosted him and inserted his fingers in his anus. For the purposes of this decision, we need not delve deeper into the details of the evidence adduced before the trial court. After hearing the prosecution’s as well as the defence case, the learned trial magistrate (Hon. S. R. Wewa) found the case against the appellant proved beyond reasonable doubt and convicted him accordingly. After considering the mitigating circumstances, the learned trial magistrate sentenced the appellant to 10 years imprisonment. In his mitigation, the appellant informed the court that he had been in remand for four years.
3.Aggrieved by that decision, the appellant preferred an appeal to the High Court in Malindi High Court Criminal Appeal No. 26 of 2019. After hearing the appeal, the learned Judge (Nyakundi, J.) found no merit in the appeal and dismissed it in its entirety on 3rd December 2019. From that decision, the appellant filed the instant appeal.
4.When the appeal was called out for virtual hearing before us on 14th February 2024, the appellant was present from Kilifi Prison while the respondent was represented by learned counsel, Mr. Mwangi Kamanu. Although the respondent had filed its written submissions dated 23rd October 2023, the appellant informed us that he had not done so and was ready to address us orally on his appeal. The appellant then informed us that he was not contesting his conviction, but was only concerned that the 4 years he spent in custody pending the hearing was not factored in his sentence.
5.Mr Kamanu informed us that he was not opposed to the period spent by the appellant in custody before his conviction being taken into account in computing his sentence.
6.Section 333 of the Criminal Procedure Code provides that:
2.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.
7.The foregoing provision makes it clear that the period during which an accused has been held in custody prior to being sentenced must be taken into account in meting out the sentence. Unless the trial court, in sentencing the accused states and sets out the effect of that period on the sentences meted, the legal implication of the proviso to section 333(2) of the Criminal Procedure Code is that the period spent in custody forms part of the eventual sentence.
8.As this Court in Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR expressed itself on the provision aforesaid:
9.The same provision was likewise dealt with by the Court Bethwel Wilson Kibor v Republic [2009] eKLR where it was held that:
10.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.
11.In this case, since neither the trial court nor the High Court expressly excluded the period which the appellant had spent in custody before sentencing, it must be presumed that the said period is to be taken into account in computing the appellant’s sentence.
12.Pursuant to the proviso to section 333(2) of the Criminal Procedure Code, we hereby direct that the 4 years spentby the appellant in custody pending his trial be taken into account in computing his sentence.
13.It is so ordered.
DATED AND DELIVERED AT MOMBASA THIS 7TH DAY OF JUNE, 2024.A. K. MURGOR...................JUDGE OF APPEALDR. K. I. LAIBUTA C.Arb, FCIArb....................JUDGE OF APPEALG. V. ODUNGA...................JUDGE OF APPEALI certify that this is the true copy of the originalSignedDEPUTY REGISTRARMLD Criminal Appeal No. 8 of 2020Page 1 of 8