Gituma v Republic [2022] KEHC 12156 (KLR)

Gituma v Republic (Criminal Appeal E106 of 2021) [2022] KEHC 12156 (KLR) (9 June 2022) (Judgment)

Neutral citation: [2022] KEHC 12156 (KLR)

Republic of Kenya

In the High Court at Meru

Criminal Appeal E106 of 2021

TW Cherere, J

June 9, 2022

Between

Peter Gikundi Gituma

Appellant

and

Republic

Respondent

(Being an appeal against sentence in Tigania Criminal Case No. 766 of 2019 by Hon. R. ONGIRA (RM) on 19th November 2020)

Judgment

1. Peter Gikundi Gituma (‘the appellant’) was charged with two counts of as follows:Count I: Grievous Harm contrary to section 234 of the Penal Code the particulars being that on August 4, 2019 at around 1930hrs at Ntombo sub-location Kimachia location in Tigania West sub-county within Meru county unlawfully did grievous harm to Josephine Nkirote by cutting her on the neck and on the left elbow by use of a panga thereby occasioning her actual bodily harm.Count II: Assault causing actual bodily harm contrary to section 251 of the Penal Code the particulars being that on August 4, 2019 at around 1930hrs at Kithiiri village Ntombo sub-location Kimachia location in Tigania West sub-county within Meru county willfully and unlawfully assaulted George Kithure by cutting him on the head by use of a panga thereby occasioning him actual bodily harm.

2. Appellant was tried, convicted on both counts and sentenced to 7 years’ imprisonment on count 1 and 4 years on count 2. The record reveals that the sentences were to run concurrently.

3. Appellant initially contested the sentence but later sought rectification of prison committal warrant so that the sentences run concurrently as stated in the judgment of the court. He also sought that the sentences take account of the period spent in custody.

Analysis and Determination 4. The appellant has attached the said committal warrant to his application, which shows that he was sent to Meru main prison on the November 19, 2020 for a period of 11 years.

5. Clearly, the committal warrant conflicts the express orders issued by the trial magistrate on November 19, 2020 that the sentences imposed on the appellant were to run concurrently and not consecutively as stated in the committal warrant.

6. The aforementioned orders similarly demonstrate that the trial magistrate was alive to the provisions of section 333(2) of the Criminal Procedure Code which require sentences to take account of the period spent in custody and indeed ordered that the sentence imposed on the appellant shall commence from August 6, 2019 when he was placed in custody.

7. From the foregoing, I find that a case has been made for rectification of the remand warrant and it is hereby ordered:1. The remand warrant shall be rectified to reflect that the 7 years and 4 years’ sentences imposed on the appellant shall run concurrently2. The sentences shall commence from August 6, 2019.

DATED THIS 09 TH DAY OF JUNE 2022WAMAE. T. W. CHEREREJUDGEAppearancesCourt Assistant - KinotiAppellant - PresentFor the State - Ms. Mwaniki (PPC)