BKM v Republic (Criminal Appeal E040 of 2022)  KEHC 13867 (KLR) (13 October 2022) (Judgment)
Neutral citation:  KEHC 13867 (KLR)
Republic of Kenya
Criminal Appeal E040 of 2022
TW Cherere, J
October 13, 2022
(An appeal from the conviction and sentence in Criminal Case No. 227 of 2013 in the Principal Magistrate’s Court at Nkubu by Hon. J.Irura (PM) on 07th March, 2017)
1.BKM (Appellant) has filed this appeal against sentence and conviction on a charge of sexual assault contrary to section 5(1)(a) as read with section 8(2) of the Sexual Offences Act No. 3 of 2006 (the Act). The offence was allegedly committed on 24th December, 2013 by inserting fingers and penis to penetrate the anus of NM
2.The prosecution called a total of five (5) witnesses in support of its case. PW4, the complainant testified that he was staying with the Appellant who is his father after his mother left home. He recalled how Appellant called him to his bed, undressed him and put his penis in his anus. PW3 JM the complainant’s maternal uncle upon receiving complainant’s report on 24th December, 2013, informed the area assistant chief, PW1 Joel Gichungi Ithima who in turn reported the matter to police and subsequently Appellant was arrested by PW5 PC Elias Mwaniki the following day on 25th December, 2013. Complainant was examined on 25th December, 2013 by PW2 Saberina Kaimatheri a clinical officer who found that he the anal opening was reddish, tender and loose as shown on the P3 form PEXH.1.
3.In his unsworn defence, Appellant denied the offence and stated that he was framed by PW3 JM with whom he had a long standing dispute.
4.In a judgment dated on 07th February, 2017, Appellant was convicted and was on 07th March sentenced to serve 10 years’ imprisonment.
5.Aggrieved by this decision, the Appellant lodged the instant appeal. From the grounds of appeal, Appellant raises the following grounds:1.That there was a grudge between him and complainant’s relatives2.The sentence was harsh and excessive3.The period he spent in custody was not considered4.Prosecution case was not proved
5.His defence was not given due consideration
Analysis and Determination
6.At the hearing, Appellant dropped all the other grounds of appeal except one which is that the time he spent in custody be taken into consideration. The State through Ms. Mwaniki (PPC) did not oppose the appeal.
7.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.
8.It is worthy to note that the Appellant was in custody throughout the trial having been arrested on 27th December, 2013. He was in custody for close to 4 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.
9.It is therefore ordered that the 10-year sentence imposed on the Appellant shall commence from 27th December, 2013 when he was arrested.
DELIVERED AT MERU THIS 13TH DAY OF OCTOBER 2022WAMAE. T. W. CHEREREJUDGEAppearancesCourt Assistant - KinotiAppellant - Present in personFor the State - Ms. Mwaniki (PPC)