1. The applicant was charged with the offence of defilement contrary to Section 8(1) as read with 8(2) of the Sexual Offence Act. He pleaded not guilty. After a full hearing, the court convicted him and sentenced him to serve 20 years imprisonment.
2. Dissatisfied with the decision he lodged an appeal being HCCRA No. E025 of 2022 Douglas Muthuri Kirianji versus Republic. On 11/4/2024 the appellate court upon reconsidering the facts, upheld the findings that convicted the accused under Section 8(1) as read together with 8(3) of the Sexual Offences Act and dismiss the appeal.
3. The applicant has now moved to court seeking consideration of the 7 years spent in custody during trial. He is seeking to invoke section 333(2) of the Criminal Procedure Code sentence to begin from the date of arrest. The application is supported with an affidavit sworn by the applicant in which he states that; he did not appeal to the court of appeal and argued that the time already served should count as sufficient retribution. He also emphasized that he has reformed and undergone rehabilitation programmes.
The application was canvassed by way of submissions. The applicant argued that sentencing is fundamental aspect of a fair trial and urged the court to apply Section 333(2) CPC by taking into account the time spent in custody since the time of his arrest and consider the time served as enough retribution. He referred to Criminal Case No. 5 of 2016 as the original matter.
4. He further submitted that he is now a reformed person and requested in the alternative, a non custodial sentence.
5. In response the respondent opposed the application. It argued that the court is functus officio and therefore lacks jurisdiction to grant the orders sought. They relied on the case of George Boke Kisiawo V R(2020) eKLR.
6. The respondent further submitted that any reduction of sentence should be sought before the Court of Appeal. They referred to the case of Raila Odinga & 2 others versus IEBC and 3 others (2013) eKLR and Joseph Maburu alias Ayub versus Republic (2019)eKLR. They emphasized that a superior court cannot sit in review/appeal over decisions of another court equal and competent jurisdiction. Guided by this, they urged to find that the applications lacks merit and is dismissed.
7. Upon reviewing the record, the trial court had expressly noted during sentencing that;
‘In view of Section 8(3) of the Sexual Offences Act and considering the relationship between the accused and the minor and the duration the accused has been in remand, the accused shall serve 20 years in jail’.
8. This demonstrates that the trial court had already factored in the period spent in custody when imposing the sentence. Consequently, the application was found to lack merit and was dismissed.
9. The application is therefore dismissed.
Dated, signed and delivered at Machakos this 6th day of March, 2026.
2. Dissatisfied with the decision he lodged an appeal being HCCRA No. E025 of 2022 Douglas Muthuri Kirianji versus Republic. On 11/4/2024 the appellate court upon reconsidering the facts, upheld the findings that convicted the accused under Section 8(1) as read together with 8(3) of the Sexual Offences Act and dismiss the appeal.
3. The applicant has now moved to court seeking consideration of the 7 years spent in custody during trial. He is seeking to invoke section 333(2) of the Criminal Procedure Code sentence to begin from the date of arrest. The application is supported with an affidavit sworn by the applicant in which he states that; he did not appeal to the court of appeal and argued that the time already served should count as sufficient retribution. He also emphasized that he has reformed and undergone rehabilitation programmes.
The application was canvassed by way of submissions. The applicant argued that sentencing is fundamental aspect of a fair trial and urged the court to apply Section 333(2) CPC by taking into account the time spent in custody since the time of his arrest and consider the time served as enough retribution. He referred to Criminal Case No. 5 of 2016 as the original matter.
4. He further submitted that he is now a reformed person and requested in the alternative, a non custodial sentence.
5. In response the respondent opposed the application. It argued that the court is functus officio and therefore lacks jurisdiction to grant the orders sought. They relied on the case of George Boke Kisiawo V R(2020) eKLR.
6. The respondent further submitted that any reduction of sentence should be sought before the Court of Appeal. They referred to the case of Raila Odinga & 2 others versus IEBC and 3 others (2013) eKLR and Joseph Maburu alias Ayub versus Republic (2019)eKLR. They emphasized that a superior court cannot sit in review/appeal over decisions of another court equal and competent jurisdiction. Guided by this, they urged to find that the applications lacks merit and is dismissed.
7. Upon reviewing the record, the trial court had expressly noted during sentencing that;
‘In view of Section 8(3) of the Sexual Offences Act and considering the relationship between the accused and the minor and the duration the accused has been in remand, the accused shall serve 20 years in jail’.
8. This demonstrates that the trial court had already factored in the period spent in custody when imposing the sentence. Consequently, the application was found to lack merit and was dismissed.
9. The application is therefore dismissed.
Dated, signed and delivered at Machakos this 6th day of March, 2026.