https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1034

Menja v Republic (Criminal Appeal 142 of 2018) [2026] KECA 1034 (KLR) (29 May 2026) (Judgment) Neutral citation: [2026] KECA 1034 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Criminal Appeal 142 of 2018 K M'Inoti, S ole Kantai & A Ali-Aroni, JJA May 29, 2026 Between John Maina Menja Appellant and Republic Respondent (Appeal from the judgment of the High Court of Kenya at Nyeri (Ong’undi, J.) dated 28th October 2018 in HCCA No. 4 of 2018) Judgment 1.On 13th May 2014, the Chief Magistrates’ Court at Nyeri convicted the appellant, John Maina Menja and sentenced him to 19 years imprisonment, for the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act, No. 3 of 2006. The appellant was aggrieved and preferred a first appeal to the High Court of Kenya at Nyeri, which was dismissed vide a judgment dated 28th October 2018. His sentence of 19 years imprisonment was set aside and substituted with one for 20 years imprisonment.The High Court further directed that the sentence to run from the date of the appellant’s conviction. 2.The appellant was not satisfied and lodged this second appeal to this Court, which is limited to a single issue, namely, whether the first appellate court erred by directing the appellant’s sentence to run from the date of his conviction. 3.By way of background, the particulars of the charge against the appellant stated that on 3rd July 2013 at XXXXXXXX village in Nyeri County, he cause his penis to penetrate the vagina of MWM, a girl of 12 years of age. The appellant also faced an alternative count of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act, the particulars being that on the same day and place as in count one, he touched the vagina of the said MWM. 4.After pleading not guilty, the prosecution called six witnesses to prove its case. The substance of that evidence was that on the material day, at about 1.00 pm, MWM with two other girls were collecting firewood in a bush when they encountered the appellant, whom MWM knew by his name and as a neighbour. He threatened to beat the girls for collecting firewood from his grandmother’s land without permission and directed MWM to go and defend herself before the grandmother. 5.On the way, the appellant, who was armed with a slasher, started asking MWM personal questions and demanding to see her private parts. Ultimately, he knocked her down, removed her panties and defiled her. She was in so much pain that she screamed, but the appellant threatened to cut her with the slasher. After the ordeal, MWM informed her grandmother and mother what had transpired and they mobilised people who arrested the appellant in his home and took him to the police station. The offence was reported to the police and MWM was issued with a P3 Form and examined and treated at Nyeri Provincial General Hospital. 6.The medical evidence showed that MWM had blood in her vulva, which was lacerated. Her vagina was tender and the hymen was broken. A vaginal swab showed a lot of blood and an infection. MWM’s age was proved by a certificate of birth, which was produced in evidence. 7.Put on his defence, the appellant gave a sworn defence but called no witness. The substance of his defence was that on the material day, a mob went to his house and accused him of being a suspect. They were joined by MWM and other people and they started beating him asking him to confess, which he refused to do. He was taken to the police station and charged with an offence to which he was a stranger. 8.As we have earlier indicted, the trial court convicted the appellant and his first appeal to the High Court was unsuccessful. 9.Back to the appeal before us, the appellant submitted, relying on written submissions dated 13th October 2025, that section 333(2) of the Criminal Procedure Code as amended in 2007 requires the Court, in meting out a sentence, to take into account the period spent by the appellant in prison. In support of his submissions the appellant relied on the decision of this Court in Ahamad Abolfathi Mohammed & Another v. Republic [2018] KECA 743 (KLR). 10.The respondent opposed the appeal vide submissions dated 14th October 2025. For unclear reasons, the respondent did not address the single issue raised by the appellant, but instead addressed other grounds which the appellant had clearly abandoned, such as substitution of the sentence by the first appellate court; bias of some of the prosecution witnesses who were relatives; failure to call crucial witnesses; the appellant’s identification; and failure to consider his defence. 11.We have considered this appeal and the submissions by the parties. Section 333(2) of the Criminal Procedure Code provides as follows:“(2)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.” 12.Additionally, the Judiciary Sentencing Policy Guidelines provide as follows regarding the time served in custody prior to conviction:“ 10The 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. 11In 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.” 13.In Ahamad Abolfathi Mohammed & Another v. Republic (supra), this Court reasoned as follows regrading section 333(2) of the Criminal Procedure Code:“There are however two grounds upon which we must fault the first appellate court, as regards sentence…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…The appellants have been in custody from the date of their arrest on 19th June 2012. 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.” 14.In the present appeal, both the trial court and the first appellate courts made no reference to section 333(2) of the Criminal Procedure Code. It is common ground that the appellant was incarcerated during his entire trial. We are satisfied that failure by the trial court and the first appellate court to consider a factor which the statute expressly requires them to consider, was a misdirection which we cannot overlook. 15.Ultimately, we allow the appeal to the extent that the sentence of twenty years imposed upon the appellant by the first appellate court shall run from the date of his arrest rather than from the date of his conviction. It is so ordered. DATED AND DELIVERED AT NYERI THIS 29TH DAY OF MAY, 2026.K. M’INOTI……………….JUDGE OF APPEALS. ole KANTAI…………………..JUDGE OF APPEALA. ALI-ARONI…………………..JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR