Kirunya v Republic [2022] KEHC 13657 (KLR)

Kirunya v Republic (Criminal Appeal 57 of 2019) [2022] KEHC 13657 (KLR) (13 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13657 (KLR)

Republic of Kenya

In the High Court at Meru

Criminal Appeal 57 of 2019

TW Cherere, J

October 13, 2022

Between

Nicholas Thiane Kirunya

Appellant

and

Republic

Respondent

(Being an appeal from the judgment, conviction and sentence in Tigania Criminal Case No. 193 of 2012 by of Hon. Sogomo, G., on 18t March, 2019)

Judgment

The charge 1. Nicholas Thiane Kirunya (Appellant) was charged with the offence of Robbery with Violence contrary to Section 296(2) of the Penal Code. He was convicted and was on March 18, 2019 sentenced to serve 20 years’ imprisonment.

The appeal 2. At the hearing of the appeal on October 6, 2022, Appellant informed the court that he only wished to pursue one ground that the time he spent in custody be taken into consideration. The State through Ms. Mwaniki (PPC) did not oppose the appeal.

3. Section 333(2) of the Criminal Procedure Codeprovides that:(2)Subject to the provisions of section 38 of the Penal Codeevery 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.

4. It is worthy to note that the Appellant was in custody throughout the trial having been arrested on February 13, 2012. He was in custody for close to 7 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.

5. It is therefore ordered that the 20-year sentence imposed on the Appellant shall commence from February 13, 2012 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)