Haji v Republic [2025] KEHC 6417 (KLR)

Haji v Republic (Miscellaneous Criminal Application E039 of 2024) [2025] KEHC 6417 (KLR) (22 May 2025) (Ruling)

Neutral citation: [2025] KEHC 6417 (KLR)

Republic of Kenya

In the High Court at Garissa

Miscellaneous Criminal Application E039 of 2024

JN Onyiego, J

May 22, 2025

Between

Ibrahim Adow Haji

Applicant

and

Republic

Respondent

(Being a revision application against the sentence of Hon. Mukabi Kimani (SRM) delivered on 8/4/2022 in MCCR Case No. E008 of 2021 at SRM’s Court at Mandera)

Ruling

1. The applicant herein was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006. The particulars were that on 21/02/2021 at around 1200 hrs within Mandera County he intentionally caused his penis to penetrate the vagina of HHA, a child aged 13 years.

2. He was also charged with an alternative offence of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006. Particulars were that on 21/02/2021 at around 1200 hrs within Mandera County, he intentionally touched the buttocks/breast/anus/vagina of HHA, a child aged 13 years with his penis.

3. The applicant was found guilty of the offence of defilement. He was subsequently convicted of the main count and sentenced to serve a term of imprisonment of twenty (20) years to be calculated from 8/4/2022 when the appellant was convicted.

4. Aggrieved by the conviction and sentence of the court, he filed a petition of appeal vide Criminal Appeal No. E022 of 2021 on 8/6/2022. The court set aside the sentence of 20 years and substituted the same with 15 years imprisonment to run from the time the trial court imposed its sentence.

5. The applicant is seeking leave of the court to include 4 months and 26 days being the time spent in remand custody during trial. Prosecution counsel did not oppose the application.

6. I have considered the application herein and the objection thereof. The applicant is basically seeking the court to take into account the period spent in remand custody pursuant to section 333(2) of the CPC.

7. It is trite law that during sentencing, a trial court must take into account the period spent in remand custody before pronouncing sentence. Section 333(2) a foresaid is quite clear on the subject. See…Ahamad Abolfathi Mohamed & another v Republic Criminal Appeal No.135 of 2016(2018) eKLR and Joseph Mwaura Macharia & others v Republic Cr. case no 488 of 2012 where both courts emphasized on the need to consider the period spent in remand custody when pronouncing sentence.

8. I have perused the lower court record. Applicant was arraigned in court for plea on 1-3-2021. He remained in custody till 16-7-2021 when he was released on bond. That period translates to four months and 15 days which should be taken into account when computing sentence. To that extent, the application is allowed.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 22ND DAY OF MAY 2025J. N. ONYIEGOJUDGE