Cheruiyot v Republic [2023] KEHC 26679 (KLR)

Cheruiyot v Republic (Miscellaneous Criminal Application E023 of 2023) [2023] KEHC 26679 (KLR) (13 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26679 (KLR)

Republic of Kenya

In the High Court at Kericho

Miscellaneous Criminal Application E023 of 2023

JK Sergon, J

December 13, 2023

Between

Cosmas Cheruiyot

Applicant

and

Republic

Respondent

Ruling

1. On 24th April, 2020, the Applicant herein was sentenced to 12 years imprisonment for the offense of defilement contrary to Section 8 (1) as read with Section 8(4) of Sexual Offences Act No. 3 of 2006.

2. The applicant being aggrieved with the outcome of the trial lodged an appeal, however, on 18th March, 2022 this court held that the appeal lacked in merit and upheld both the conviction and sentence meted by the trial court.

3. The applicant subsequently applied for resentencing, however, the trial court declined to interfere with the 12 year imprisonment, the trial court in its ruling date 15th December, 2022 held that that the petition for resentencing lacked in merit and dismissed it. In the said ruling it was noted that the Learned Magistrate did exercise discretion and did not go by the prescribed minimum statutory sentence.

4. The Applicant has made the instant application under section 333 (2) of the Criminal Procedure Code CAP 63 Laws of Kenya for inclusion of the period he was in custody prior to his sentence of 12 years imprisonment. He stated that he was in remand for a period of thirteen (13) months.

5. The prosecution did not oppose the said Application.

6. The original record is missing but the typed proceedings of the lower court indicate that the applicant was arrested and subsequently arraigned in court. He took plea on 22nd February, 2018 and pleaded not guilty for the instant offence. He was granted a bond of Kshs. 100,000/= with a surety of similar amount. He was released on bond on 6th November, 2018, however, he absconded and warrants were issued for his arrest. He was rearrested on 15th November, 2019 and remained in custody until the day he was sentenced by the trial court on 24th April, 2020. I therefore find that the applicant spent a total of one (1) year, one (1) month in custody and the same was not considered during sentencing.

7. I direct that the one (1) year, one (1) month served in Custody be factored in and be deducted from the jail term of 12 years.Orders to issue accordingly.

DATED, SIGNED AND DELIVERED AT KERICHO THIS 13TH DAY OF DECEMBER, 2023. J.K. SERGONJUDGEIn the presence of:C/Assistant – RutohProsecutor – Mr. MusyokiAccused – Present in Person