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(Being an appeal on sentence from the judgment dated 22nd January 2025 by Hon. M. Opanga, Principal Magistrate in the Magistrates Court at Wang’uru Criminal Case No. E019 of 2023)
1. The appellant, Brian Kariuki Muriungi was charged with the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act (Cap. 63A) Laws of Kenya. The particulars of the offence were that the appellant on 16th August 2023 at Gathigiriri market in Mwea East Sub-County within Kirinyaga County, intentionally and unlawfully caused his penis to penetrate the vagina of S. W. W. a child aged 14 years.
2. In the alternative, he was charged with committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act (Cap. 63A) Laws of Kenya. The particulars of the offence were that on 16th August 2023 at Gathigiriri market in Mwea East Sub-County within Kirinyaga County, the appellant intentionally and unlawfully touched the vagina of S. W. W. a child aged 14 years with his penis.
3. The prosecution called 5 witnesses in support of its case. In defence, the appellant made an unsworn statement and did not call a witness.
4. At the end of the trial, the appellant was found guilty of the principal charge of defilement, and he was convicted and sentenced to serve 15 years'' imprisonment.
5. The appellant was aggrieved by the decision of the trial court, and in his amended grounds of appeal dated 19th March 2025, he states that his appeal is on sentence only and specifically that the trial court, when sentencing the appellant, failed to consider the time spent in custody during the hearing of the case. He therefore prays that this appeal be allowed and the time he spent in remand custody be computed in the sentence he is to serve.
6. The appeal was disposed of by way of written submissions filed by the appellant and the respondent who however, does not seem to have seen the amended grounds of appeal as its submissions are on the initial grounds of appeal.
7. In his submissions, the appellant indicates that he was charged under section 8(1) as read with section 8(4) of the SOA. However, the correct position is that he was charged under section 8(3) of the SOA. In his submissions, the appellant reiterated that his appeal was on sentence only and particularly under the provisions of section 333(2) of the Criminal Procedure Code (Cap. 75) Laws of Kenya where the period he spent in remand custody prior to sentencing to be taken into account as the trial court failed to do so.
8. I have carefully considered the amended grounds of appeal in the petition, the submissions by the appellant and the process of sentencing by the trial court.
9. The issue for this court to consider is the failure by the trial court to expressly indicate that it had taken into account the period the appellant had been in custody pending his trial.
10. Section 8(3) of the SOA under which the appellant was sentenced provides that:
8(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
11. Section 8(4) of the SOA, which the appellant erroneously cites in his submissions as the one under which he was charged, on the other hand, provides that:
8(4) A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.
12. The appellant was sentenced to serve fifteen years’ imprisonment. The sentence provided for under section 8(3) of the Sexual Offences Act is a minimum term of twenty years’ imprisonment. That means the lower court passed an illegal sentence. Even where the respondent is not appealing for the enhancement of the sentence as in the present case, this court should, under sections 362 and 364 of the Criminal Procedure Code (Cap. 75) Laws of Kenya, correct that error by imposing the correct sentence. The sections provide in the relevant parts as follows:
S. 362: The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.
S. 364 (1)(a) In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358, and may enhance the sentence;
(2) No order under this section shall be made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by an advocate in his own defence:
Provided that this subsection shall not apply to an order made where a subordinate court has failed to pass a sentence which it was required to pass under the written law creating the offence concerned.
(3) Where the sentence dealt with under this section has been passed by a subordinate court, the High Court shall not inflict a greater punishment for the offence which in the opinion of the High Court the accused has committed than might have been inflicted by the court which imposed the sentence.
13. This court, proceeding under section 364(2) of the Criminal Procedure Code above, corrects the sentence passed upon the appellant by the trial court to provide that the appellant will serve twenty (20) years’ imprisonment and not fifteen (15) years imprisonment.
14. Section 333(2) CPC under which the appellant files this appeal provides that:
333(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.
15. Explaining this provision of the law, the Court of Appeal in the case of Ahamad Abolfathi Mohammed & another v Republic [2018] eKLR, held that the court should include the period already spent in custody from the time of arrest, in the sentence that it metes out to an accused person.
16. The Sentencing Policy Guidelines 2023 provide further elaboration of this provision as follows:
“2.3.18 Section 333 (2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody. Failure to do so impacts the overall period of detention which may result in a punishment that is not proportionate to the seriousness of the offence committed. This also applies to those who are charged with offences that involve minimum sentences as well as where an accused person has spent time in custody because he or she could not meet the terms of bail or bond.
2.3.19 Upon determining the period of imprisonment to impose upon an offender, the court must then deduct the period spent in custody in identifying the actual period to be served (see GATS at Part V). This period must be carefully calculated – and courts should make an enquiry particularly with unrepresented offenders – for example, there may be periods served where bail was interrupted and a short remand in custody was followed by a reissuance of bail e.g., where a surety is withdrawn, and a new surety is later found. This calculation must include time spent in police custody.”
17. Accordingly, under Section 333(2) of the Criminal Procedure Code the period served in remand from the date the appellant was arrested on 15th August 2023 to the date of conviction and sentencing on 22nd January 2025 is to be computed in the term of imprisonment.
18. Since the trial court did not order that the time spent in custody during trial be taken into account in the sentence of imprisonment for the applicant, it is only fair and just, and this court orders that the period be deducted from the appellant’s sentence of twenty (20) years imprisonment in line with section 333(2) of the Criminal Procedure Code. An amended committal warrant shall be signed by the Deputy Registrar.
19. Accordingly, for the reasons set out above, I find that the appeal succeeds but with the correction that the sentence to be served is twenty (20) years imprisonment.
20. It is so ordered.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual Platform, Teams, this 16th day of September 2025 in the presence of:
The appellant in person from Nyeri Maximum prison.
Komu (Ms) for the respondent
Job: Court assistant.
'
(Being an appeal on sentence from the judgment dated 22nd January 2025 by Hon. M. Opanga, Principal Magistrate in the Magistrates Court at Wang’uru Criminal Case No. E019 of 2023)
1. The appellant, Brian Kariuki Muriungi was charged with the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act (Cap. 63A) Laws of Kenya. The particulars of the offence were that the appellant on 16th August 2023 at Gathigiriri market in Mwea East Sub-County within Kirinyaga County, intentionally and unlawfully caused his penis to penetrate the vagina of S. W. W. a child aged 14 years.
2. In the alternative, he was charged with committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act (Cap. 63A) Laws of Kenya. The particulars of the offence were that on 16th August 2023 at Gathigiriri market in Mwea East Sub-County within Kirinyaga County, the appellant intentionally and unlawfully touched the vagina of S. W. W. a child aged 14 years with his penis.
3. The prosecution called 5 witnesses in support of its case. In defence, the appellant made an unsworn statement and did not call a witness.
4. At the end of the trial, the appellant was found guilty of the principal charge of defilement, and he was convicted and sentenced to serve 15 years'' imprisonment.
5. The appellant was aggrieved by the decision of the trial court, and in his amended grounds of appeal dated 19th March 2025, he states that his appeal is on sentence only and specifically that the trial court, when sentencing the appellant, failed to consider the time spent in custody during the hearing of the case. He therefore prays that this appeal be allowed and the time he spent in remand custody be computed in the sentence he is to serve.
6. The appeal was disposed of by way of written submissions filed by the appellant and the respondent who however, does not seem to have seen the amended grounds of appeal as its submissions are on the initial grounds of appeal.
7. In his submissions, the appellant indicates that he was charged under section 8(1) as read with section 8(4) of the SOA. However, the correct position is that he was charged under section 8(3) of the SOA. In his submissions, the appellant reiterated that his appeal was on sentence only and particularly under the provisions of section 333(2) of the Criminal Procedure Code (Cap. 75) Laws of Kenya where the period he spent in remand custody prior to sentencing to be taken into account as the trial court failed to do so.
8. I have carefully considered the amended grounds of appeal in the petition, the submissions by the appellant and the process of sentencing by the trial court.
9. The issue for this court to consider is the failure by the trial court to expressly indicate that it had taken into account the period the appellant had been in custody pending his trial.
10. Section 8(3) of the SOA under which the appellant was sentenced provides that:
8(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
11. Section 8(4) of the SOA, which the appellant erroneously cites in his submissions as the one under which he was charged, on the other hand, provides that:
8(4) A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.
12. The appellant was sentenced to serve fifteen years’ imprisonment. The sentence provided for under section 8(3) of the Sexual Offences Act is a minimum term of twenty years’ imprisonment. That means the lower court passed an illegal sentence. Even where the respondent is not appealing for the enhancement of the sentence as in the present case, this court should, under sections 362 and 364 of the Criminal Procedure Code (Cap. 75) Laws of Kenya, correct that error by imposing the correct sentence. The sections provide in the relevant parts as follows:
S. 362: The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.
S. 364 (1)(a) In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358, and may enhance the sentence;
(2) No order under this section shall be made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by an advocate in his own defence:
Provided that this subsection shall not apply to an order made where a subordinate court has failed to pass a sentence which it was required to pass under the written law creating the offence concerned.
(3) Where the sentence dealt with under this section has been passed by a subordinate court, the High Court shall not inflict a greater punishment for the offence which in the opinion of the High Court the accused has committed than might have been inflicted by the court which imposed the sentence.
13. This court, proceeding under section 364(2) of the Criminal Procedure Code above, corrects the sentence passed upon the appellant by the trial court to provide that the appellant will serve twenty (20) years’ imprisonment and not fifteen (15) years imprisonment.
14. Section 333(2) CPC under which the appellant files this appeal provides that:
333(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.
15. Explaining this provision of the law, the Court of Appeal in the case of Ahamad Abolfathi Mohammed & another v Republic [2018] eKLR, held that the court should include the period already spent in custody from the time of arrest, in the sentence that it metes out to an accused person.
16. The Sentencing Policy Guidelines 2023 provide further elaboration of this provision as follows:
“2.3.18 Section 333 (2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody. Failure to do so impacts the overall period of detention which may result in a punishment that is not proportionate to the seriousness of the offence committed. This also applies to those who are charged with offences that involve minimum sentences as well as where an accused person has spent time in custody because he or she could not meet the terms of bail or bond.
2.3.19 Upon determining the period of imprisonment to impose upon an offender, the court must then deduct the period spent in custody in identifying the actual period to be served (see GATS at Part V). This period must be carefully calculated – and courts should make an enquiry particularly with unrepresented offenders – for example, there may be periods served where bail was interrupted and a short remand in custody was followed by a reissuance of bail e.g., where a surety is withdrawn, and a new surety is later found. This calculation must include time spent in police custody.”
17. Accordingly, under Section 333(2) of the Criminal Procedure Code the period served in remand from the date the appellant was arrested on 15th August 2023 to the date of conviction and sentencing on 22nd January 2025 is to be computed in the term of imprisonment.
18. Since the trial court did not order that the time spent in custody during trial be taken into account in the sentence of imprisonment for the applicant, it is only fair and just, and this court orders that the period be deducted from the appellant’s sentence of twenty (20) years imprisonment in line with section 333(2) of the Criminal Procedure Code. An amended committal warrant shall be signed by the Deputy Registrar.
19. Accordingly, for the reasons set out above, I find that the appeal succeeds but with the correction that the sentence to be served is twenty (20) years imprisonment.
20. It is so ordered.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual Platform, Teams, this 16th day of September 2025 in the presence of:
The appellant in person from Nyeri Maximum prison.
Komu (Ms) for the respondent
Job: Court assistant.
'