[2022] KEHC 14148 (KLR)
The High Court found that the trial magistrate had indeed considered the period the appellant spent in custody before sentencing. The trial court expressly noted that the appellant had been in custody for close to seven years and adjusted the sentence accordingly, imposing a 13-year term to run from the date of...
Source-derived case information.
- Citation
- [2022] KEHC 14148 (KLR)
- Parties
- Appellant: Moses Murumba Watitwa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal E041 of 2021
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- SN Riechi
- Legal Topics
- Defilement, Sentencing Principles, Remand Period Credit, Sexual Offences Act, Appeal Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Moses Murumba Watitwa
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the trial court considered the period spent in remand by the appellant when sentencing.
- 2 Whether the sentence imposed was lawful and appropriate in light of the time already served.
Ratio Decidendi
The High Court found that the trial magistrate had indeed considered the period the appellant spent in custody before sentencing. The trial court expressly noted that the appellant had been in custody for close to seven years and adjusted the sentence accordingly, imposing a 13-year term to run from the date of re-sentencing. The court held that explicit reference to section 333(2) of the Criminal Procedure Code was not mandatory as long as the record demonstrated that the period spent in custody was factored into the sentence. Consequently, the appeal lacked merit and was dismissed.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
Full Case Text
Judgment text and source record
26 paragraphs
Murumba v Republic (Criminal Appeal E041 of 2021) [2022] KEHC 14148 (KLR) (4 October 2022) (Judgment)
Neutral citation: [2022] KEHC 14148 (KLR)
Republic of Kenya
In the High Court at Bungoma
Criminal Appeal E041 of 2021
SN Riechi, J
October 4, 2022
Between
Moses Murumba Watitwa
Appellant
and
Republic
Respondent
(An appeal arising from the sentence of Hon G. Adhiambo (PM) in original Kimilili SPMC’S S.O Case No. E006 of 2021 passed on 30/3/2021)
Judgment
1. The appellant herein was charged with the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act, 2006. The particulars were that on diverse dates between 18th and April 20, 2014 at [particulars withheld] vilage in Bungoma north district within Bungoma county intentionally caused his penis to penetrate the vagina of CM, a child aged 9 years.
2. After trial, the appellant was found guilty, convicted and sentenced to serve life imprisonment.
3. Aggrieved by the sentence, the appellant appealed to this court vide Bungoma Criminal Appeal No 146 of 2018 where justice Bwonwong’a in a judgement dated March 11, 2020, upheld the conviction. On sentence, the learned judge found the same to have been harsh and remitted the file back to the trial court for re-hearing only on sentence.
4. The file was thus placed before the trial magistrate for re-sentencing on March 30, 20201 where after considering the material placed before her sentenced the appellant to 13 years imprisonment. The appellant was aggrieved thus the instant appeal which is premised on the following grounds;1. That he is a first offender.2. The period he spent in remand be considered.3. That he is the bread winner of his family and parents who are aged.4. That he is contended with 13 years imposed.
5. The appeal was disposed of by way of written submissions which are on record. The same have been considered.
6. The appellant herein is contesting the fact that the time he spent in remand was not considered by the trial court while meting out the sentence. The matter herein had come to this court earlier by way of appeal against both the conviction and sentence. The court upheld the conviction and remitted the file back to the trial court with instructions that the trial court re-hears the appellant on sentence.
7. Upon hearing the appellant, the trial court reduced the sentence to 13 years prison term. While handing down the sentence, the trial court held thus;……..I have considered the fact that the accused has been in custody for close to 7 years…………………I hereby sentence the accused to serve 13 years imprisonment. The sentence to run from today the March 30, 2021 as I have taken note of the fact that he has been in custody close to 7 years thus making the total period of imprisonment to be 20 years.
8. The proviso to section 333(2) of theCriminal Procedure Code states;Provided hat 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.
9. Considering the sentence handed down by the trial magistrate; clearly, the trial magistrate considered this fact. She need not make special reference to section 333 of theCriminal Procedure Codeso that one can say she considered the provisions of the section. Clearly, she considered the period spent by the appellant in custody before handing down the sentence.
10. I have perused the record together with the submissions herein as well as the law and find this appeal without merit and is hereby dismissed.
DATED AT BUNGOMA THIS 4TH DAY OF OCTOBER, 2022. S. N. RIECHIJUDGE