Wakhanya v Republic [2022] KEHC 15040 (KLR)

Wakhanya v Republic (Criminal Appeal E142 of 2016) [2022] KEHC 15040 (KLR) (Crim) (18 October 2022) (Judgment)

Neutral citation: [2022] KEHC 15040 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Appeal E142 of 2016

JM Bwonwong'a, J

October 18, 2022

Between

Geoffrey Wafula Wakhanya

Appellant

and

Republic

Respondent

(Being an appeal from the sentence of Hon M Mutuku, SPM, dated 22/09/2016 in Milimani CM’S Court in Criminal Case No 1193 of 2015 Republic v Geoffrey Wafula Wakhanya)

Judgment

1. The appellant originally filed an appeal against both conviction and sentence in this court. During oral hearings, he abandoned his appeal against his conviction and proceeded against sentence only.

2. The appellant was convicted sentenced to ten years imprisonment on September 22, 2016 in respect of the offence of rape contrary to section 3 (1) (a) of the Sexual Offences Act No 3 of 2006.

3. The appellant was charged in the trial court on July 14, 2015 and he pleaded not guilty.

4. Again, during oral hearing of the appeal, the appellant submitted that he was in pre-trial remand custody for one year and two months. He has further submitted that this period was not taken into account when he was sentenced by the trial court on September 22, 2016.

5. Mr Mutuma, counsel for the respondent left the matter to the court to decide.

6. I find that the appellant was convicted and sentenced to ten years imprisonment on September 22, 2016. It is clear from the sentencing notes that the trial court did not take into account the period of one and two months during which period the appellant was in pre-trial custody. I therefore find that the trial court erred in law in failing to take that period into account as required of it by section 333 (2) (o) the Criminal Procedure Code(cap 75) of the laws of Kenya.

7. It therefore follows that the appellant will now serve ten years less one year and two months; which translates to eight years and ten months.The said sentence will begin to run from the date of conviction.

RULING SIGNED, DATED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 18TH OF OCTOBER 2022. J M BWONWONG’AJUDGEIn the presence of-Mr. Kinyua: Court AssistantThe appellant in personMr. Mutuma for the Respondent