Agaziba v Republic (Miscellaneous Criminal Application E015 of 2022) [2023] KEHC 25935 (KLR) (27 November 2023) (Ruling)
Neutral citation:
[2023] KEHC 25935 (KLR)
Republic of Kenya
Miscellaneous Criminal Application E015 of 2022
JN Kamau, J
November 27, 2023
Between
Maxwell Agaziba
Applicant
and
Republic
Respondent
Ruling
Introduction
1.The Applicant herein was charged with the offence of stealing contrary to Section 275 of the Penal Code Cap 63 (Laws of Kenya). He was convicted and sentenced to five (5) years imprisonment.
2.On 23rd August 2022, P.J. Otieno J found him unsuitable to serve a non-custodial sentence.
3.On 19th September 2022, he filed a Notice of Motion application seeking to have the period that he stayed in custody while the trial was ongoing being from 23rd March 2020 to 17th September 2021 taken into account as part of the sentence that he had already served pursuant to Section 333(2) of the Criminal Procedure Code.
4.In his said application that was supported by his Affidavit, he pointed out that his sentence ought to have run from the date of his conviction which was 17th September 2021. It was his assertion that the omission by the Trial Court to consider this period contravened his right to fair trial under Article 25 (2) of the Constitution.
5.He cited the case of Ahamad Albofathi Mohammed & Another vs Republic [2018] eKLR where the court held that sentence ought to run from the date of arrest. He thus urged this court to grant him the orders he had sought.
6.He did not file Written Submissions to support his prayer. The Respondent was not opposed to the said application and did not therefore file any Written Submissions.
Legal Analysis
7.As seen hereinabove, the Applicant’s application was based on Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya). The said Section provides that:
8.This duty is also contained in the Judiciary Sentencing Policy Guidelines (under clauses 7.10 and 7.11) where it is provided that: -
9.The duty to take into account the period an accused person had remained in custody before sentencing pursuant to Section 333(2) of the Criminal Procedure Code was restated by the Court of Appeal in the case of Ahamad Abolfathi Mohammed & Another v Republic (Supra).
10.The Applicant was arrested on 14th November 2020. He was convicted and sentenced on 17th September 2021. Although he was granted bail, he did not appear to have come out on bond/bail while his trial was going on. He thus spent ten (10) months and three (3) days in custody before he was sentenced.
11.A further reading of the Trial Court’s Sentence showed that it did not take into consideration the time he spent in remand before conviction and sentencing. This court was therefore convinced that this was a suitable case for it to exercise its discretion and grant the orders sought.
Disposition
12.For the foregoing reasons, the upshot of this court’s decision was that the Applicant’s Notice of Motion application that was dated 15th September 2022 and filed on 19th September 2022 was merited and the same be and is hereby allowed.
13.It is hereby directed that the period the Applicant spent in custody between 14th November 2020 and 17th September 2021 as the trial was ongoing as provided in Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya), be taken into account at the time of computation of his sentence.
14.It is so ordered.
DATED AND DELIVERED AT VIHIGA THIS 27TH DAY OF NOVEMBER 2023J. KAMAUJUDGE