Murumba v Republic [2022] KEHC 14148 (KLR)

Murumba v Republic (Criminal Appeal E041 of 2021) [2022] KEHC 14148 (KLR) (4 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14148 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Appeal E041 of 2021

SN Riechi, J

October 4, 2022

Between

Moses Murumba Watitwa

Appellant

and

Republic

Respondent

(An appeal arising from the sentence of Hon G. Adhiambo (PM) in original Kimilili SPMC’S S.O Case No. E006 of 2021 passed on 30/3/2021)

Judgment

1. The appellant herein was charged with the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act, 2006. The particulars were that on diverse dates between 18th and April 20, 2014 at [particulars withheld] vilage in Bungoma north district within Bungoma county intentionally caused his penis to penetrate the vagina of CM, a child aged 9 years.

2. After trial, the appellant was found guilty, convicted and sentenced to serve life imprisonment.

3. Aggrieved by the sentence, the appellant appealed to this court vide Bungoma Criminal Appeal No 146 of 2018 where justice Bwonwong’a in a judgement dated March 11, 2020, upheld the conviction. On sentence, the learned judge found the same to have been harsh and remitted the file back to the trial court for re-hearing only on sentence.

4. The file was thus placed before the trial magistrate for re-sentencing on March 30, 20201 where after considering the material placed before her sentenced the appellant to 13 years imprisonment. The appellant was aggrieved thus the instant appeal which is premised on the following grounds;1. That he is a first offender.2. The period he spent in remand be considered.3. That he is the bread winner of his family and parents who are aged.4. That he is contended with 13 years imposed.

5. The appeal was disposed of by way of written submissions which are on record. The same have been considered.

6. The appellant herein is contesting the fact that the time he spent in remand was not considered by the trial court while meting out the sentence. The matter herein had come to this court earlier by way of appeal against both the conviction and sentence. The court upheld the conviction and remitted the file back to the trial court with instructions that the trial court re-hears the appellant on sentence.

7. Upon hearing the appellant, the trial court reduced the sentence to 13 years prison term. While handing down the sentence, the trial court held thus;……..I have considered the fact that the accused has been in custody for close to 7 years…………………I hereby sentence the accused to serve 13 years imprisonment. The sentence to run from today the March 30, 2021 as I have taken note of the fact that he has been in custody close to 7 years thus making the total period of imprisonment to be 20 years.

8. The proviso to section 333(2) of theCriminal Procedure Code states;Provided hat 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.

9. Considering the sentence handed down by the trial magistrate; clearly, the trial magistrate considered this fact. She need not make special reference to section 333 of theCriminal Procedure Codeso that one can say she considered the provisions of the section. Clearly, she considered the period spent by the appellant in custody before handing down the sentence.

10. I have perused the record together with the submissions herein as well as the law and find this appeal without merit and is hereby dismissed.

DATED AT BUNGOMA THIS 4TH DAY OF OCTOBER, 2022. S. N. RIECHIJUDGE