Jmk Alias En/e v Republic

in 2020, twice in 2021, and once in 2022. She discovered she was pregnant in February 2023. Upon being questioned by her teacher regarding changes in her behaviour and demeanour, she disclosed the abuse and identified the Appellant as the perpetrator. The matter was thereafter reported to the police. PW1 confirmed she had never had sexual intercourse with any other person. 4. PW2 MKN stated she is a Guidance and Counselling teacher at [Particulars withheld] Primary School. She testified that in February 2023 she noticed PW1 was dull, inactive, and had changed behaviourally. She called PW1 and PW1 reported to her that a man she called 'baba' had sent her sibling on an errand one afternoon and remained with her and had sexual intercourse with her. PW2 reported the matter to Deputy Head Teacher Madam J, and shortly thereafter police from Matutu Police Station attended and recorded statements. PW2 stated she did not personally know the accused. 5. PW3 Caren Moraa, a Clinical Officer from Kijauri Sub-County Hospital. produced the medical documents for the complainant confirming that the complainant was brought to the facility being pregnant and that she was 11 years old at the time of the medical examination. She produced as exhibits a P3 Form (P. EXBT 1), PRC Form (P. EXBT 2), and Treatment Notes (P. EXBT 3). 6. PW4 Martha Mbatia, a Children's Officer, Borabu Sub-County testified that on 02nd March 2023 she received a report concerning two children, RB and NM (PW1). She was informed that the children lived with their father (the Appellant) and that the mother was in Saudi Arabia. She was further informed that NM was being defiled by her father and was already pregnant. She escalated the matter to Matutu Police Station and escorted PW1 to the hospital for medical examination where pregnancy was confirmed. 7. PW5 PC Irene Rono, the Investigating Officer attached to Matutu Police Station testified that a report of defilement against a minor by her step-father was received on 03rd March 2023. She went to the home, found the Appellant, and arrested and booked him at the station. The Appellant was positively identified by PW1 as her abuser. She produced the complainant’s Birth Certificate as P. EXBT 4 which shows she was born on 22nd April 2009. On 02nd November 2023, she escorted the minor and the Appellant to a hospital in Kisumu where DNA samples were extracted. She produced DNA test results (P. EXBT 5) confirming the there were 99.99+% more chances that Appellant is the biological father of TK, who is also complainant’s biological child. 8. The Appellant in his defence acknowledged PW1 as his daughter and that he had been her guardian since 2021 when her mother relocated to Saudi Arabia. He then voluntarily changed his plea, stating: “ I wish to state to the court that I wish to plead guilty to the charges. Indeed, I committed the said offence and it was not once, to be precise I had sexual intercourse with PW1 two times only. I denied committing the said offence in the first instance since I panicked being my first time to be arraigned in a court of law and/or being arrested." 9. Consequently, the charges and every element thereof were re-stated to the Appellant in the Kiswahili language he understands. When asked whether he admitted or denied the charges, he replied: "It's true." Mr. Sitati for the DPP applied that the prosecution evidence on record be admitted as facts of the case, including the exhibits. The Accused had no objection and acknowledged that the facts were correct. A plea of guilty was entered and the Accused was convicted on his own plea of guilty. 10. In mitigation, the Appellant stated he prayed for pardon, that he had a young family and younger siblings who depended on him, and that he had learnt his lesson during the time he spent on remand. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4458/eng@2026-03-05 2

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11. The trial court directed a pre-sentence report to issue before proceeding to sentencing. On 20th September 2024, the trial court delivered sentence which read in part: “ I have put into consideration the mitigation by the offender, the nature of the offence and the circumstances at which it was committed. I have also put into consideration the report by the probation officer in totality. I do take note that the offender has been threatening the witnesses during the pending of this matter by an attempt to sabotaging evidence, most importantly, this is a man whom was left to take care of the victim who is of very much tender ears 13 years old to be precise as the guardian, who by and large was expected to exercise proper care and guardianship of the said minor PW1. This is a guardian whom the minor trusted as a father that she could trust him most especially bearing to the fact that the mother was away. It is unfortunate that the expected protector who turned to be the predator. Therefore, considering the circumstance at which the offence was committed, I hereby meet out the mandatory minimum sentence and sentence the accused to 20 years imprisonment." 12. Aggrieved by the sentence, the Appellant preferred this appeal mainly on two grounds: 1) That the sentence awarded to him is highly excessive. 2) That the trial court failed to consider the period spent in remand under section 333(2) of the Criminal Procedure Code (CPC). 13. The Appellant subsequently filed undated Written Submissions in this in which he expressly abandoned all other grounds and opted to argue only the issue of the failure by the trial court to consider the period spent in pre-sentence custody pursuant to Section 333(2) of the Criminal Procedure Code. 14. The Appellant's submission on this ground is that he was arrested on 03rd March 2023 and arraigned on 06th March 2023. He remained in custody until he was sentenced on 20th September 2024 which is approximately one (1) year, six (6) months and seventeen (17) days. 15. The Appellant cited the authority of Ahmed Abolfathi Mohammed & Sayed Mansour Mousavi v Republic [2018] eKLR in support of his submission that the period spent in custody must always be factored during sentencing of a convict, and that where the trial court failed to factor in the period spent in custody, the sentence imposed must be interfered with to factor in that period. The Respondent did not file any submissions. 16. The Appellant's sole remaining issue before this Court concerns the failure of the trial court to take into account the period spent in pre-sentence custody pursuant to Section 333(2) of the Criminal Procedure Code, Cap. 75. Section 333(2) provides that where a person who is subsequently sentenced has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody. The import of this provision is clear and mandatory. It is not a discretionary consideration but a statutory obligation that every sentencing court is bound to observe. 17. The undisputed chronology drawn from the record establishes that the Appellant was arrested on 03rd March 2023. He remained in continuous custody from the date of his arrest until the date of sentencing on 20th September 2024, a period amounting to approximately one year, six months, and seventeen days. 18. Notwithstanding this extended period in remand, an examination of the trial court's sentencing remarks of 20th September 2024 reveals that no express or implied direction was made that the sentence https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4458/eng@2026-03-05 3

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of 20 years should take effect from the date of arrest or that the period spent in pre-sentence custody should be credited against the sentence. The Warrant of Commitment dated 20th September 2024 commanded service of 20 years imprisonment from that date without any notation accounting for the pre-sentence period. This was an error of law. 19. Before concluding this judgment, this Court underscores the constitutional imperative to protect the privacy and dignity of children involved in criminal proceedings. The Supreme Court in CMM (Suing as the Next Friend of and on Behalf of CWM) & 6 others v Standard Group & 4 others [2023] KESC 68 (KLR) affirmed that the best interests of the child under Article 53(2) of the Constitution, read together with the right to privacy under Article 31(c), are paramount and must guide judicial conduct in such matters. The Court emphasized that the open justice principle does not justify disclosure of identifying particulars of minors and that courts must take proactive steps to safeguard children’s identities. Although the present appeal has been determined, this Court draws the attention of the trial court that handled this matter to that binding jurisprudence and reiterates the continuing duty, in all proceedings involving minors, to ensure that records and judgments do not disclose identifying details and that children are consistently referred to by initials only. 20. In the end, it is hereby ordered as follows: 1. The 20-year sentence imposed on the Appellant shall be deemed to have commenced on 03rd March 2023, being the date of the Appellant's arrest. 2. The Officer in Charge of Kisii Main Prison shall recompute the remaining period of the sentence accordingly. DELIVERED AT NYAMIRA THIS 05TH DAY OF MARCH 2026 WAMAE.T. W. CHERERE JUDGE Appearances Court Assistant - Anita Appellant - Present in person For the DPP - Mr. Chirchir (SADPP) https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4458/eng@2026-03-05 4

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