Wario v Republic (Criminal Appeal E032 of 2023) [2024] KEHC 3043 (KLR) (20 March 2024) (Ruling) Neutral citation: [2024] KEHC 3043 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT MARSABIT CRIMINAL APPEAL E032 OF 2023 JN NJAGI, J MARCH 20, 2024 BETWEEN WAKO JATTAN WARIO ........................................................................ APPELLANT AND REPUBLIC ............................................................................................ RESPONDENT (Being an appeal from the original conviction and sentence by Willy K. Cheruiyot, PM, in Moyale P.M’s Court Criminal MSCO Case No.E002 of 2023 delivered on 28/11/2023) RULING 1. The appellant was convicted for the ofience of defilement and was sentenced to serve 10 years imprisonment. He has now filed amended grounds of appeal stating that the trial court in sentencing him did not take note of the period spent in custody awaiting trial contrary to the provisions so section 333(2) of the Criminal Procedure Code. The applicant in support of his application relied on the cases of Ahanah Abol Fathi Mohamed & another –v- Republic (2018) eKLR & Bethwel Wilson Kibor –vRepublic (2009)eKLR. 2. I have perused the record of the trial court. During sentencing the trial magistrate only stated that he had considered the provisions of section 8(3) of the Sexual Offences Act under which the applicant was charged. He stated that the ofience of defilement was committed against a child aged 15 years. The magistrate then sentenced the applicant to a sentence of 10 years imprisonment. The magistrate did not state that he had considered the period spent in custody awaiting trial. 3. The applicant was sentenced on 21.11.23. He was arraigned in court on the 9th January, 2023. He was in custody throughout the trial. This was a period of about 10 months. Section 333(2) of the Criminal Procedure Code behoves a court before sentencing an accused person who has been in custody during the trial to take into account the period spent in custody when sentencing the accused. The trial court in this case did not comply with the provisions of the section. The applicant was thus prejudiced by https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/3043/eng@2024-03-20 1
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the sentence. It is the duty of this court to correct any mistake done by the trial court. I accordingly order that the sentence of 10 years imprisonment be served commencing from the date the applicant took plea, that is on January 9, 2023. It is so ordered. DELIVERED, DATED AND SIGNED AT MARSABIT THIS 20TH DAY OF MARCH, 2024. J.N. NJAGI JUDGE In the presence of: Mr. Ngigi for Respondent Applicant – Appearing in person Court Assistant Jarso 14 days Right of Appeal https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/3043/eng@2024-03-20 2
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