[1] The appellant, George Odhiambo Jalang’o was the accused person in Ndhiwa Principal Magistrate’s Criminal Case No. E003 of 2024: Repubic v George Odhiambo Jalang’o . He was therein charged with the offence of rape, contrary to Section 3(1)(a) and (b) as read with Section 3(3) of the Sexual Offences Act, No. 3 of 2006. It was alleged that on the 25 th day of February 2024, at Gaena Village in Lower Kayambo Location of Ndhiwa Sub-County, he intentionally and unlawfully caused his penis to penetrate the vagina of one R A O.
[2] In the alternative, the appellant was charged with indecent act with an adult contrary to Section 11A of the Sexual Offences Act; in that, on the 25 th day of February 2024, at Gaena Village in Lower Kayambo Location of Ndhiwa Sub-County, he intentionally and unlawfully caused his penis to penetrate the vagina of one R A O an adult of 29 years. He was also charged with a second substantive count of assault causing actual bodily harm contrary to Section 251 of the Penal Code, The particulars thereof were that on the 25 th February 2024 at Gaena Village in Lower Kayambo Location of Dhiwa Sub-County, he unlawfully assaulted Roseline Auma Ouma thereby occasioning her actual bodily harm.
[3] The appellant denied the charges; and upon his case being tried by the subordinate court, he was found guilty and convicted of the substantive charge of rape. The lower court analysed the evidence adduced by the Prosecution against the appellant and came to the conclusion, after taking into account the defence case, that the principal charges had been proved beyond reasonable doubt. Accordingly, the learned magistrate proceeded to convict and sentence the appellant accordingly.
[4] Being aggrieved by his conviction and sentence, the appellant filed the instant appeal on the following grounds:
[a] That the learned magistrate erred in both law and fact by failing to find that the Prosecution did not prove its case beyond reasonable doubt;
[b] That the trial magistrate erred in law and in fact in arriving at a decision while relying on the evidence that was full of contradictions;
[c] That the trial magistrate erred in law and in fact in failing to appreciate that the prosecution case lacked corroborative evidence to support the evidence of the complainant;
[d] That the sentence imposed on him is excessive, degrading and harsh.
[5] Consequently, the appellant prayed that his appeal be allowed and the sentence of 71 years set aside.
[6] The appeal was urged by way of written submissions. The appellant’s submissions are dated 14 th May 2025 and in addition to reiterating the appellant’s grounds of appeal, counsel for the appellant made reference to the duty of the Court as the first appellate court to re-evaluate the evidence presented before the lower court. In this regard, the appellant relied on Okeno v Republic [1972] EA 32; Njoroge v Republic [1987] KLR 99; Patrick v Republic [2005] 2 KLR 162.
[7] With regard to the essential ingredients of the charge of rape, it was the submission of the appellant that the Prosecution did not prove these ingredients beyond a shadow of doubt, and therefore the learned trial magistrate erred in fact and in law in finding the appellant guilty of the offence. The appellant further argued that since the complainant is a married young woman it is possible that the painful tender vaginal walls or the other injuries noted by PW4 may have been as a result of having had sex with her husband.
[8] The appellant also urged the Court to reconsider the sentence imposed on him by the lower court with a view of setting it aside. In his submission it was imperative for the trial magistrate to appreciate that sentencing is a crucial part in the criminal process and the administration of justice. He relied on Francis Karioko Muruatetu & another v Republic [2017] eKLR and the Judiciary Sentencing Guidelines as to the relevant factors that courts ought to bear in mind before passing sentence. On the basis thereof, it was the contention of the appellant that the learned magistrate erred in the following respects:
[a] The trial magistrate did not consider the fact that he was a first offender or that he was a young man with a young family that he was looking after.
[b] The trial magistrate did not take into account his character and his clean record.
[c] The trial magistrate failed to consider the time spent by him in custody prior to his conviction when computing his sentence.
[9] Accordingly, the appellant we urged the Court to allow his appeal, quash the conviction and set aside the sentence of 71 years.
[10] The respondent opposed the appeal and was of the posturing that all the ingredients of the offences of rape and assault had been proved before the lower court beyond reasonable doubt. Counsel relied on the evidence of the complainant as to how the appellant went to their house and proceeded to forcefully rape her by inserting his genital organ into her vagina as well as anus. Counsel further pointed out that the evidence of PW1 was duly corroborated by her husband (PW2), the Clinical Officer who examined the complainant (PW4) and the police officers (PW3) and PW5). Similarly, the contention of the respondent was that the sentence passed on the appellant by the lower court was not only lawful but justified in the circumstances. In the premises, the Court was urged to dismiss the appeal in its entirety.
[11] I have given due consideration to the appeal, as well as the written submissions filed herein by both the appellant and counsel for the State. I am mindful that, in a first appeal such as this, the Court is under obligation to reconsider the evidence adduced before the lower court and come to its own conclusions thereon. In Okeno v Republic [1972] EA 32, the Court of Appeal for East Africa expressed this principle thus:
"An appellant on a first appeal is entitled to expect the evidence as a whole to be subjected to a fresh and exhaustive examination ... and to the appellate court's own decision on the whole evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions...It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses..."
[12] I have been given due consideration to the evidence adduced before the lower court. The Prosecution called 5 witnesses, the first witness being the complainant (PW1). Her evidence was that she was at home alone picking beans to prepare their evening meal when the appellant arrived at about 4.00 pm. He immediately accosted her and held her by the neck, pushed her to the bedroom and proceeded to rape her by first inserting his genital organ in her anus, thereby causing her to defecate on herself; and thereafter by penetrating her vagina with his penis. It was the evidence of PW1 that after the appellant left, she proceeded to her husband’s place of work and reported the occurrence to him. They caused the matter to be reported to the Police for investigations; which were conducted by PW3.
[13] The Prosecution also adduced evidence to the effect that PW1 was thereafter examined by a Clinical Officer at Ndhiwa Hospital. His findings were that PW1 had pain on the front part of neck, lower abdomen and knee joints. He also noted that PW1 had painful and tender vaginal walls. A vaginal swab revealed the presence of numerous sperms. He therefore concluded, from his observations, that the complainant had been raped.
[14] PW5 works as a Government Analyst and was then attached to the DNA Section of the Government Chemist. His evidence before the lower court was that he analyzed the vaginal swabs of the complainant against the samples extracted from the mouths of the complainant, her husband (PW2), as well as the appellant; and that the result of the analysis confirmed the presence of the appellant’s DNA in the complainant’s vaginal swab.
[15] When placed on his defence, the appellant stated on oath that on the date in question, he woke up as usual and went to work and was at his workshop till about 6.00 pm. He was arrested at about midnight and was taken to the police station on allegations that he had raped the complainant. He denied the allegation.
[16] Section 3(1) of the Sexual Offences Act provides
(1) A person commits the offence termed rape if—
(a) he or she intentionally and unlawfully commits an act which causes penetration with his or her genital organs;
(b) the other person does not consent to the penetration; or
(c) the consent is obtained by force or by means of threats or intimidation of any kind.
(2) In this section the term "intentionally and unlawfully" has the meaning assigned to it in section 43 of this Act.
[17] A perusal of the judgment of the lower court shows that the learned trial magistrate correctly framed the issues for determination at page 37 of the Record of Appeal. Thus, the pertinent questions to pose in this appeal, granted the appellant's Grounds of Appeal are as follows:
[a] Whether sufficient evidence was adduced before the lower court to prove the ingredients of the offence of rape to the requisite standard; and if so,
[b] Whether sufficient cause has been shown for this Court to interfere with the sentence imposed on the appellant by the trial magistrate.
[a] On whether the ingredients of the offence of rape were proved :
[18] The Prosecution was under obligation to prove that there was penetration of the complainant's genital organ by the appellant without her consent or that consent for such penetration was procured by force or by means of threats or intimidation. As has been indicated herein above, the evidence of penetration was given by the complainant; a 29-year-old woman who was then employed as a teacher at Sigama Primary School. She testified that she was raped by the appellant and that she immediately reported the incident to her husband PW2 identifying the appellant as Baba Wendy. Her evidence was corroborated by the evidence of PW4 and the investigating officer (PW3). The complainant was immediately taken to Ndhiwa Sub-County where she was examined and samples taken for further analysis by the Government Chemist.
[19] PW2 was in no doubt as to who Baba Wendy was. He immediately went to his house to confront him and after reporting the matter to the police, PW2 properly identified the appellant to them. He was also present when the appellant was arrested. More importantly, both PW4 and PW5 testified that the vaginal swabs obtained from the complainant not only had numerous sperms but also matched the DNA profile of the appellant. It is also significant that the incident took place in broad daylight at about 4.00 pm; and therefore the complainant was in a position to identify the appellant. She noted that she knew him before, although she feigned ignorance when the appellant sought to confirm that she knew him. There was therefore sufficient evidence placed before the lower court in proof of both penetration and the fact that the penetration was committed by the appellant without the consent of the complainant.
[20] Hence, the conclusion that I come to in respect of the first issue is that there was cogent evidence before the lower court to demonstrate beyond reasonable doubt that PW1 was raped by the appellant on the 25 th day of February 2024, in that there was intentional and unlawful penetration of her vagina without her consent by the appellant.
[b] On whether the sentence is tenable:
[21] In Ogalo s/o Owuora v Republic [1954] 21 EACA 270, it was held that:
“The principles upon which an appellate court will act in exercising its jurisdiction to review sentence are fairly established. The court does not alter a sentence on the mere ground than if the member of the court had been trying the appellant, they might have passed a somewhat different sentence and it will not ordinarily interfere with the discretion exercised by a trial judge unless as was said in James v Republic [1950] 18 EACA 147 , it is evident that the judge has acted upon some wrong principle or overlooked some material factor. To this we would also add a third criterion namely that the sentence is manifestly excessive in view of the circumstances of the case.”
[22] Accordingly, Section 3(3) of the Sexual Offences Act provides that:
“(3) A person guilty of an offence under this section is liable upon conviction to imprisonment for a term which shall not be less than ten years but which may be enhanced to imprisonment for life.”
[23] The record of the lower court confirms that the learned trial magistrate considered the appellant’s mitigation and weighed it against the gravity of the offence and circumstances in which the offence was committed. In the premises, the sentence of 71 years for the offence of rape is therefore within the range provided for in Section 3(3) above and is therefore lawful. Indeed, in Republic v Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR) (11 April 2025) (Judgment) the Supreme Court had occasion to make the point that:
Paragraph 11 to 14 of the Muruatetu & another v Republic; Katiba Institute & 4 others (Amicus Curiae) [2021] KESC 31 (KLR) directions ( Muruatetu Direction) were very clear that the decision in the Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2017] KESC 2 (KLR) ( Muruatetu decision ) did not invalidate mandatory sentences or minimum sentences in the Penal Code, Sexual Offences Act or any other statute. The Muruatetu decision could not be said to be the authority for stating that all provisions of the law prescribing minimum sentences were inconsistent with the Constitution.”
[24] It is notable however that the appellant was a first offender and that he had been in custody prior to his conviction and sentence. Therefore, it was pertinent for the lower court to bear in mind the guidelines in the Judiciary Sentencing Policy at paragraphs 2.3.18 and 2.3.19 that:
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.
[25] Therefore, I am of the considered view that the sentence imposed in respect of the substantive charge for Count I is excessive. The same is hereby reduced to 40 years imprisonment to be reckoned from the date of the appellant’s arrest, namely, 26 th February 2024.
[26] In Count II the appellant was charged with assault causing actual bodily harm, in respect of which Section 251 of the Penal Code states:
Any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanour and is liable to imprisonment for five years.
[27] On the face of it, the particulars for Count II may appear to be a subset of the Main Charge. However, it is noteworthy that the aspect of violence did not form part of the main charge and therefore this is not a case of double jeopardy. Accordingly, for the same reasons as stated herein above, the term imposed in respect of Count II is hereby reduced to 3 years, to run concurrently with the 40 years imposed for Count I from the date of the appellant’s arrest.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 17 TH DAY OF APRIL 2026
[2] In the alternative, the appellant was charged with indecent act with an adult contrary to Section 11A of the Sexual Offences Act; in that, on the 25 th day of February 2024, at Gaena Village in Lower Kayambo Location of Ndhiwa Sub-County, he intentionally and unlawfully caused his penis to penetrate the vagina of one R A O an adult of 29 years. He was also charged with a second substantive count of assault causing actual bodily harm contrary to Section 251 of the Penal Code, The particulars thereof were that on the 25 th February 2024 at Gaena Village in Lower Kayambo Location of Dhiwa Sub-County, he unlawfully assaulted Roseline Auma Ouma thereby occasioning her actual bodily harm.
[3] The appellant denied the charges; and upon his case being tried by the subordinate court, he was found guilty and convicted of the substantive charge of rape. The lower court analysed the evidence adduced by the Prosecution against the appellant and came to the conclusion, after taking into account the defence case, that the principal charges had been proved beyond reasonable doubt. Accordingly, the learned magistrate proceeded to convict and sentence the appellant accordingly.
[4] Being aggrieved by his conviction and sentence, the appellant filed the instant appeal on the following grounds:
[a] That the learned magistrate erred in both law and fact by failing to find that the Prosecution did not prove its case beyond reasonable doubt;
[b] That the trial magistrate erred in law and in fact in arriving at a decision while relying on the evidence that was full of contradictions;
[c] That the trial magistrate erred in law and in fact in failing to appreciate that the prosecution case lacked corroborative evidence to support the evidence of the complainant;
[d] That the sentence imposed on him is excessive, degrading and harsh.
[5] Consequently, the appellant prayed that his appeal be allowed and the sentence of 71 years set aside.
[6] The appeal was urged by way of written submissions. The appellant’s submissions are dated 14 th May 2025 and in addition to reiterating the appellant’s grounds of appeal, counsel for the appellant made reference to the duty of the Court as the first appellate court to re-evaluate the evidence presented before the lower court. In this regard, the appellant relied on Okeno v Republic [1972] EA 32; Njoroge v Republic [1987] KLR 99; Patrick v Republic [2005] 2 KLR 162.
[7] With regard to the essential ingredients of the charge of rape, it was the submission of the appellant that the Prosecution did not prove these ingredients beyond a shadow of doubt, and therefore the learned trial magistrate erred in fact and in law in finding the appellant guilty of the offence. The appellant further argued that since the complainant is a married young woman it is possible that the painful tender vaginal walls or the other injuries noted by PW4 may have been as a result of having had sex with her husband.
[8] The appellant also urged the Court to reconsider the sentence imposed on him by the lower court with a view of setting it aside. In his submission it was imperative for the trial magistrate to appreciate that sentencing is a crucial part in the criminal process and the administration of justice. He relied on Francis Karioko Muruatetu & another v Republic [2017] eKLR and the Judiciary Sentencing Guidelines as to the relevant factors that courts ought to bear in mind before passing sentence. On the basis thereof, it was the contention of the appellant that the learned magistrate erred in the following respects:
[a] The trial magistrate did not consider the fact that he was a first offender or that he was a young man with a young family that he was looking after.
[b] The trial magistrate did not take into account his character and his clean record.
[c] The trial magistrate failed to consider the time spent by him in custody prior to his conviction when computing his sentence.
[9] Accordingly, the appellant we urged the Court to allow his appeal, quash the conviction and set aside the sentence of 71 years.
[10] The respondent opposed the appeal and was of the posturing that all the ingredients of the offences of rape and assault had been proved before the lower court beyond reasonable doubt. Counsel relied on the evidence of the complainant as to how the appellant went to their house and proceeded to forcefully rape her by inserting his genital organ into her vagina as well as anus. Counsel further pointed out that the evidence of PW1 was duly corroborated by her husband (PW2), the Clinical Officer who examined the complainant (PW4) and the police officers (PW3) and PW5). Similarly, the contention of the respondent was that the sentence passed on the appellant by the lower court was not only lawful but justified in the circumstances. In the premises, the Court was urged to dismiss the appeal in its entirety.
[11] I have given due consideration to the appeal, as well as the written submissions filed herein by both the appellant and counsel for the State. I am mindful that, in a first appeal such as this, the Court is under obligation to reconsider the evidence adduced before the lower court and come to its own conclusions thereon. In Okeno v Republic [1972] EA 32, the Court of Appeal for East Africa expressed this principle thus:
"An appellant on a first appeal is entitled to expect the evidence as a whole to be subjected to a fresh and exhaustive examination ... and to the appellate court's own decision on the whole evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions...It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses..."
[12] I have been given due consideration to the evidence adduced before the lower court. The Prosecution called 5 witnesses, the first witness being the complainant (PW1). Her evidence was that she was at home alone picking beans to prepare their evening meal when the appellant arrived at about 4.00 pm. He immediately accosted her and held her by the neck, pushed her to the bedroom and proceeded to rape her by first inserting his genital organ in her anus, thereby causing her to defecate on herself; and thereafter by penetrating her vagina with his penis. It was the evidence of PW1 that after the appellant left, she proceeded to her husband’s place of work and reported the occurrence to him. They caused the matter to be reported to the Police for investigations; which were conducted by PW3.
[13] The Prosecution also adduced evidence to the effect that PW1 was thereafter examined by a Clinical Officer at Ndhiwa Hospital. His findings were that PW1 had pain on the front part of neck, lower abdomen and knee joints. He also noted that PW1 had painful and tender vaginal walls. A vaginal swab revealed the presence of numerous sperms. He therefore concluded, from his observations, that the complainant had been raped.
[14] PW5 works as a Government Analyst and was then attached to the DNA Section of the Government Chemist. His evidence before the lower court was that he analyzed the vaginal swabs of the complainant against the samples extracted from the mouths of the complainant, her husband (PW2), as well as the appellant; and that the result of the analysis confirmed the presence of the appellant’s DNA in the complainant’s vaginal swab.
[15] When placed on his defence, the appellant stated on oath that on the date in question, he woke up as usual and went to work and was at his workshop till about 6.00 pm. He was arrested at about midnight and was taken to the police station on allegations that he had raped the complainant. He denied the allegation.
[16] Section 3(1) of the Sexual Offences Act provides
(1) A person commits the offence termed rape if—
(a) he or she intentionally and unlawfully commits an act which causes penetration with his or her genital organs;
(b) the other person does not consent to the penetration; or
(c) the consent is obtained by force or by means of threats or intimidation of any kind.
(2) In this section the term "intentionally and unlawfully" has the meaning assigned to it in section 43 of this Act.
[17] A perusal of the judgment of the lower court shows that the learned trial magistrate correctly framed the issues for determination at page 37 of the Record of Appeal. Thus, the pertinent questions to pose in this appeal, granted the appellant's Grounds of Appeal are as follows:
[a] Whether sufficient evidence was adduced before the lower court to prove the ingredients of the offence of rape to the requisite standard; and if so,
[b] Whether sufficient cause has been shown for this Court to interfere with the sentence imposed on the appellant by the trial magistrate.
[a] On whether the ingredients of the offence of rape were proved :
[18] The Prosecution was under obligation to prove that there was penetration of the complainant's genital organ by the appellant without her consent or that consent for such penetration was procured by force or by means of threats or intimidation. As has been indicated herein above, the evidence of penetration was given by the complainant; a 29-year-old woman who was then employed as a teacher at Sigama Primary School. She testified that she was raped by the appellant and that she immediately reported the incident to her husband PW2 identifying the appellant as Baba Wendy. Her evidence was corroborated by the evidence of PW4 and the investigating officer (PW3). The complainant was immediately taken to Ndhiwa Sub-County where she was examined and samples taken for further analysis by the Government Chemist.
[19] PW2 was in no doubt as to who Baba Wendy was. He immediately went to his house to confront him and after reporting the matter to the police, PW2 properly identified the appellant to them. He was also present when the appellant was arrested. More importantly, both PW4 and PW5 testified that the vaginal swabs obtained from the complainant not only had numerous sperms but also matched the DNA profile of the appellant. It is also significant that the incident took place in broad daylight at about 4.00 pm; and therefore the complainant was in a position to identify the appellant. She noted that she knew him before, although she feigned ignorance when the appellant sought to confirm that she knew him. There was therefore sufficient evidence placed before the lower court in proof of both penetration and the fact that the penetration was committed by the appellant without the consent of the complainant.
[20] Hence, the conclusion that I come to in respect of the first issue is that there was cogent evidence before the lower court to demonstrate beyond reasonable doubt that PW1 was raped by the appellant on the 25 th day of February 2024, in that there was intentional and unlawful penetration of her vagina without her consent by the appellant.
[b] On whether the sentence is tenable:
[21] In Ogalo s/o Owuora v Republic [1954] 21 EACA 270, it was held that:
“The principles upon which an appellate court will act in exercising its jurisdiction to review sentence are fairly established. The court does not alter a sentence on the mere ground than if the member of the court had been trying the appellant, they might have passed a somewhat different sentence and it will not ordinarily interfere with the discretion exercised by a trial judge unless as was said in James v Republic [1950] 18 EACA 147 , it is evident that the judge has acted upon some wrong principle or overlooked some material factor. To this we would also add a third criterion namely that the sentence is manifestly excessive in view of the circumstances of the case.”
[22] Accordingly, Section 3(3) of the Sexual Offences Act provides that:
“(3) A person guilty of an offence under this section is liable upon conviction to imprisonment for a term which shall not be less than ten years but which may be enhanced to imprisonment for life.”
[23] The record of the lower court confirms that the learned trial magistrate considered the appellant’s mitigation and weighed it against the gravity of the offence and circumstances in which the offence was committed. In the premises, the sentence of 71 years for the offence of rape is therefore within the range provided for in Section 3(3) above and is therefore lawful. Indeed, in Republic v Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR) (11 April 2025) (Judgment) the Supreme Court had occasion to make the point that:
Paragraph 11 to 14 of the Muruatetu & another v Republic; Katiba Institute & 4 others (Amicus Curiae) [2021] KESC 31 (KLR) directions ( Muruatetu Direction) were very clear that the decision in the Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2017] KESC 2 (KLR) ( Muruatetu decision ) did not invalidate mandatory sentences or minimum sentences in the Penal Code, Sexual Offences Act or any other statute. The Muruatetu decision could not be said to be the authority for stating that all provisions of the law prescribing minimum sentences were inconsistent with the Constitution.”
[24] It is notable however that the appellant was a first offender and that he had been in custody prior to his conviction and sentence. Therefore, it was pertinent for the lower court to bear in mind the guidelines in the Judiciary Sentencing Policy at paragraphs 2.3.18 and 2.3.19 that:
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.
[25] Therefore, I am of the considered view that the sentence imposed in respect of the substantive charge for Count I is excessive. The same is hereby reduced to 40 years imprisonment to be reckoned from the date of the appellant’s arrest, namely, 26 th February 2024.
[26] In Count II the appellant was charged with assault causing actual bodily harm, in respect of which Section 251 of the Penal Code states:
Any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanour and is liable to imprisonment for five years.
[27] On the face of it, the particulars for Count II may appear to be a subset of the Main Charge. However, it is noteworthy that the aspect of violence did not form part of the main charge and therefore this is not a case of double jeopardy. Accordingly, for the same reasons as stated herein above, the term imposed in respect of Count II is hereby reduced to 3 years, to run concurrently with the 40 years imposed for Count I from the date of the appellant’s arrest.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 17 TH DAY OF APRIL 2026