Njagi v Republic [2024] KEHC 11049 (KLR)

Njagi v Republic (Criminal Appeal E005 of 2024) [2024] KEHC 11049 (KLR) (19 September 2024) (Judgment)

Neutral citation: [2024] KEHC 11049 (KLR)

Republic of Kenya

In the High Court at Chuka

Criminal Appeal E005 of 2024

LW Gitari, J

September 19, 2024

Between

Nasarino Njeru Njagi

Appellant

and

Republic

Respondent

Judgment

1. The appellant filed this appeal against the conviction and sentence passed against him in the Chief Magistrate’s Court at Chuka Criminal Case No.818/2015 where he was charged with attempted murder contrary to Section 220(b) of the Penal Code and an alternative charge of Assault causing actual bodily harm contrary to Section 251 of the Penal Code. The particulars of the offence of attempted murder were that on the 10/8/2015 at Rukindu village Karingani Location in Meru South Sub-County with intent, unlawfully attempted to cause the death of Domina Cia Karundu by shooting her with arrows.

2. He pleaded not guilty and a full trial was conducted at the conclusion of which he was found guilty and sentence to serve fifteen years imprisonment.

3. He filed the Petition of Appeal based of four grounds which were challenging the sentence imposed by the learned trial magistrate mainly contending that the sentence was harsh and excessive.

4. The matter came up on 24/6/2024 to confirm filing of submissions by the parties. The appellant informed the court that he wished to withdraw the appeal and urged the court to consider the time that he spent in prison while awaiting trial which the trial magistrate failed to take into account. Thus the appellant abandoned the appeal. The State did not object and urged the court to take into account that period as it was not considered.

5. In view of this development the appeal on sentence is marked as abandoned. Section 333(2) of the Criminal Procedure Code (Cap 75 Laws of Kenya) it provided:“333(2) Subject to the provisions of section 38 of the Penal Code 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.”

6. In the case of Abolfathi Ahamad and Another –v- Republic (2017) eKLR the Court of Appeal stated that the time spent in custody while awaiting trial should be taken into account to reduce the sentence which is ultimately passed on the accused.

7. The court stated that it is not enough to state that the period spent in custody has been considered. It must be shown that the time is taken into account to reduce the sentence imposed. I have perused the record of the lower court. It is evident that the time spent in custody was not considered. From the record, the appellant was arrested on 12/9/2015 and arraigned in court on 15/9/2015. He was granted bail and a surety was approved on 17/9/2015. A period of seven days in custody. He was again remanded on 5/1/2017 and released on 31/3/2017, then 14/3/2018 to 17/10/2018. The period spent in custody was ten (10) months and six days.

8. I order that the sentence imposed on the appellant shall be reduced by ten months and six days to take into account the period spent in custody.

DATED, SIGNED AND DELIVERED AT CHUKA THIS 19TH DAY OF SEPTEMBER 2024. L.W. GITARIJUDGE