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Mutwiri v Republic (Criminal Appeal E019 of 2022) [2022] KEHC 13866 (KLR) (13 October 2022) (Judgment)
Neutral citation:
[2022] KEHC 13866 (KLR)
Republic of Kenya
Criminal Appeal E019 of 2022
TW Cherere, J
October 13, 2022
Between
Richard Mutwiri
Appellant
and
Republic
Respondent
(Appeal against conviction and sentence in Nkubu S. O Criminal Case No. E001 of 2020 by Hon. E.Ayuka (SRM) on 02nd February, 2022)
Judgment
The Trial
1.Richard Mutwiri (appellant) was charged with the attempted defilement contrary to section 9(1) as read with section 9(2) of the Sexual Offences Act No. 3 of 2006 (the Act). The offence was allegedly committed on September 12, 2020 against FKM a child aged 4 ½ years.
Prosecution case
2.The prosecution called a total of four (4) witnesses in support of its case. PW1 FKM, the aged 5 years when she testified recalled that appellant whom he referred to as Mutwiri and who lived at the home of one Mutuma called him to his house, put her on his bed and licked her vagina. PW2 PK aged 8 years stated she was playing with and had left her behind and when she went back for her informed her that Mutwiri had licked her vagina. was examined by Seberina Kaimetheri a clinical officer on September 13, 2020 and he found that had a broken as shown on the P3 form produced as PEXH.1. Appellant was subsequently arrested and charged. ’s certificate of birth PEXH. 2 reveals that she was born on March 3, 2016.
Defence case
3.Appellant in his sworn defence denied the offence and stated that he was framed by ’s mother with whom he had had a intimate relationship with. He however confirmed that he was well known to the 2 children that testified.
4.By a judgment delivered on February 2, 2020, appellant was convicted and sentenced to 10 years’ imprisonment.
The Appeal
4.By his amended grounds of appeal filed on September 19, 2022, appellant raises only one ground that ins sentencing him, the learned trial magistrate did not consider the provisions of section 333(2) of the Criminal Procedure Code. The State through Ms. Mwaniki (PPC) did not oppose the appeal.
5.Section 333(2) 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.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.
6.It is worthy to note that the appellant was in custody throughout the trial having been arrested on September 14, 2020. He was in custody for close to 2 years before the conviction and sentence. The record reveals that the learned trial magistrate did not take this period into consideration at the point of sentencing the appellant.
7.It is therefore ordered that the 10-year sentence imposed on the appellant shall commence from September 14, 2020 when he was arrested.
DELIVERED AT MERU THIS 13THDAY OF OCTOBER 2022WAMAE. T. W. CHEREREJUDGEAppearancesCourt Assistant - KinotiAppellant - Present in personFor the State - Ms. Mwaniki (PPC)
