Momanyi v Republic [2022] KEHC 10048 (KLR)

Momanyi v Republic (Criminal Revision E028 of 2022) [2022] KEHC 10048 (KLR) (Crim) (12 July 2022) (Ruling)

Neutral citation: [2022] KEHC 10048 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Revision E028 of 2022

LN Mutende, J

July 12, 2022

Between

James Nyakundi Momanyi

Applicant

and

Republic

Respondent

Ruling

1. James Nyakundi Momanyi, the applicant, was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006. The complainant was a child aged ten (10) years.

2. Having been taken through full trial he was found guilty, convicted and sentenced to serve fifteen (15) years imprisonment.

3. By an application filed herein on 21st February, 2022, he seeks review of sentence to include time spent in custody as provided by Section 333 (2) of the Criminal Procedure Code (CPC) which provides as follows:(2)Subject to the provisions of section 38 of the Penal Code (Cap. 63) 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.

4. The State through learned Counsel Ms. Adhambo conceded the application on the grounds that the trial court failed to comply with the law.

5. I have considered what transpired at trial. It is apparent that the learned Magistrate did not take into account the time the applicant was incarcerated during trial. In the premises, the application succeeds. I therefore direct that the fifteen (15)years the applicant was sentenced to will be effective from the date of arrest, the 6th day of May, 2018.

6. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI, THIS 12TH DAY OF JULY, 2022. L. N. MUTENDEJUDGEIn the presence of:ApplicantMs. Adhiambo for DPPCourt Assistant - Mutai