https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1496

Ngura v Republic (Criminal Appeal E076 of 2026) [2026] KECA 1496 (KLR) (24 July 2026) (Judgment) Neutral citation: [2026] KECA 1496 (KLR) Republic of Kenya In the Court of Appeal at Eldoret Criminal Appeal E076 of 2026 PM Gachoka, WK Korir & L Ndolo, JJA July 24, 2026 [FORMERLY KISUMU HCCRA NO E202 OF 2022] Between Kirimwa Ngura Appellant and Republic Respondent (Appeal from the Judgement of the High Court at Kapenguria (S.M. Githinji, J.) delivered on 30th May 2017 in Misc. Criminal Application No. 1 of 2016) Judgment 1.This appeal emanates from the appellant’s conviction, by the Principal Magistrate’s Court at Kapenguria, of five counts of defilement contrary to section 8(1) as read with 8(3) of the Sexual Offences Act. 2.The particulars of the offences were that between the nights of 10th and 15th February 2014, in Pokot Central District within West Pokot County, the appellant wilfully and unlawfully caused his penis to penetrate the vagina of SC, a girl aged 15 years. 3.The appellant faced an alternative charge of committing an indecent act with a child, contrary to section 11(1) of the Sexual Offences Act. 4.The appellant was tried and convicted on the main charges of defilement and was sentenced to 20 years’ imprisonment, for each count, with an order that the sentences would run concurrently. In its judgment dated 5th November 2014, the trial court rejected the appellant’s defence that the minor was his wife, terming the practice of child marriage as repugnant to justice and morality, and contrary to the Constitution. 5.The appellant’s appeal to the High Court was dismissed, with the conviction and sentence being upheld. The appellant therefore filed a second appeal before this Court. In his initial memorandum of appeal, the appellant had appealed against both conviction and sentence. 6.However, in his amended grounds of appeal filed alongside submissions (both undated), the appellant has abandoned the appeal against conviction, and therefore restricts himself to sentence only. 7.In addition to asking for reduction of the 20 years’ imprisonment, the appellant complains that both the trial court and the first appellate court did not take into account the period he had spent in custody, prior to conviction and sentence. 8.The appeal was heard on 3rd June 2026; the appellant appeared virtually from Kapenguria Main Prison and Mr. Okango, Assistant Director of Public Prosecutions, appeared for the respondent. 9.This is a second appeal and as guided by section 361(1) of the Criminal Procedure Code, our jurisdiction is restricted to matters of law. The basic principle is that a second appellate court will not interfere with concurrent findings of fact by the trial court and the first appellate court, unless they are shown to be based on no evidence or are demonstrably perverse. This position was restated in Mwangi vs Republic [2026] KECA 640 (KLR), in the following terms:“A second appeal must be confined to points of law and this Court will not interfere with concurrent findings of fact arrived at by the two courts below unless such findings are based on no evidence or are based on a misapprehension of the evidence or the courts below are demonstrably shown to have acted on wrong principles in arriving at their findings…” 10.We have carefully considered the record of appeal and the submissions by the parties. We note that only two issues arise for consideration namely; whether the sentence of 20 years should be reduced, and whether the period spent in custody during trial should be taken into account. 11.We will first dispense with the issue of reduction of the 20 years’ imprisonment. In his plea for reduction of sentence, the appellant states that he is remorseful, fully reformed and rehabilitated. While taking note of the appellant’s stated change of heart, we recognise that the 20 years’ imprisonment handed to him is the minimum sentence for a charge of defilement under section 8(3) of the Sexual Offences Act. 12.The Supreme Court, whose decisions are binding on this Court, has authoritatively affirmed that where a minimum sentence is imposed by statute, courts have no room to tinker with such a sentence (see Republic vs Manyeso [2025] KESC 16 (KLR) and Republic vs Ayako [2025] KESC 20 (KLR)). In these circumstances, the short answer to the appellant’s plea to us to reduce the 20-year prison term imposed on him by the trial court, is that we have no power to do so. 13.Regarding the plea on the period spent in custody, the appellant relies on section 333(2) of the Criminal Procedure Code which 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. 14.The right of an accused person to have the period spent in custody accounted for in passing sentence has been affirmed in several decisions of this Court. In Omukhunya vs Republic [2025] KECA 237 (KLR) the Court stated:“It is clear that the period during which an accused has been in custody before being sentenced must be taken into account in meting out the sentence.” 15.In Ahamad Abolfathi Mohammed & Sayed Mansour vs Republic [2018] KECA 743 (KLR) the Court explained the import of the proviso to section 333(2) of the Penal Code, stating:“Taking into account the period spent in custody must mean considering that period so that the imposed period 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 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.” 16.The Judiciary Sentencing Policy Guidelines pay homage to this basic principle by providing that:“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 trial.” 17.From the record, neither the trial court nor the first appellate court took into account the period the appellant was in custody, prior to conviction. As a consequence, it falls on us to correct this error, committed by the two courts below. 18.The record shows that the appellant was first presented for plea on 25th March 2014 and although he was admitted to bail, he remained in custody as he was unable to meet the bail terms. He was convicted on 5th November 2014 and sentenced on 10th November 2014. His sentence should consequently run from 25th March 2014, when he was first arraigned in court. 19.This appeal therefore succeeds only to the extent that the effective date of the appellant’s sentence of 20 years’ imprisonment is declared to be 25th March 2014, being the date he was first presented for plea. We so direct. DATED AND DELIVERED AT ELDORET THIS 24TH DAY OF JULY, 2026.M. GACHOKA C.Arb, FCIArb.......................................JUDGE OF APPEALW. KORIR.......................................JUDGE OF APPEALL.M. NDOLO.......................................JUDGE OF APPEALI certify that this is a true copy of the original.DEPUTY REGISTRAR.