Githinji v Republic (Criminal Miscellaneous Application E016 of 2026) [2026] KEHC 8890 (KLR) (17 June 2026) (Ruling) Neutral citation: [2026] KEHC 8890 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT MURANG'A CRIMINAL MISCELLANEOUS APPLICATION E016 OF 2026 GL NZIOKA, J JUNE 17, 2026 BETWEEN STEPHEN MAINA GITHINJI ................................................................ APPLICANT AND REPUBLIC ........................................................................................... PROSECUTION RULING 1. By a notice of motion application dated 12th May 2026 the applicant is seeking for orders that: a. The court considers the period of three (3) years and one (1) month he spent in remand. b. That the sentence of thirty (30) years arising from the conviction in MCRCC No. 203 of 2011 be ordered to run concurrently with the sentence of assaulting a police officer and attempting to escape lawful arrest. 2. The application is supported by the applicant’s affidavit wherein he avers that he was charged with the offence of robbery with violence and the matter proceeded to full hearing and he was convicted and sentenced to suffer death. 3. That he appealed to the High Court vide High Court Criminal Appeal No 43 of 2015 wherein the sentence was substituted to a term of thirty (30) years imprisonment. However, he argues that the High Court erroneously subtracted three (3) months from his sentence as the period he spent in remand during the pendency of the trial. 4. The applicant further avers that, he was charged and convicted of the offence of assaulting a police officer and attempted escape from lawful custody and sentenced to serve three (3) years on each count and the sentenced ordered to run concurrently. But, the sentence of robbery with violence was ordered to run consecutively to the afore sentence of three (3) years. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8890/eng@2026-06-17 1
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5. Having considered the application in the light of the material placed before the court, it is noted from the trial court’s record that the applicant was arraigned in the trial court on 9th February 2011 and granted bond terms of Kshs. 300,000 with one (1) surety of a similar amount on 22nd March 2011. That on 31st May 2012 the surety was approved and the applicant released from remand. 6. However, on 10th July 2013, the applicant failed to attend court and a warrant of arrest issued. On 30th July 2013, the applicant appeared before the court and explained that he failed to attend court on the scheduled date as he was unwell. However, the prosecution opposed the applicant’s explanation and argued that the documents relied on by the applicant were suspicious. That the court agreed with the prosecution and cancelled the applicant’s bond. Subsequently, judgment was delivered in the trial court on 30th April 2015. In the judgment delivered on appeal, the court ordered that the three (3) month spent in custody during the trial be taken into consideration. 7. Pursuant to the aforesaid, the period the applicant was in custody was between 9th February 2011 and 31st May 2012, being a period of one (1) year, three (3) months and twenty-two (22) days. The subsequent period after absconding bond cannot be considered as he created it himself and cannot benefit from it. He who goes to equity must go with clean hands. Consequently, the period of three (3) months is substituted with a period of one (1) year, three (3) months and twenty-two (22) days which will be reduced from the thirty (30) years imprisonment but without attracting remission. 8. The afore correction is based on the slip rule which allows the court to correct clerical and/or arithmetical errors that do not alter the intent of the court as expounded on by the Supreme Court of Kenya in the case of Outa v Okello & 3 others [2017] KESC 25 (KLR) where it stated that: “ By its nature, the Slip Rule permits a Court of law to correct errors that are apparent on the face of the Judgment, Ruling, or Order of the Court. Such errors must be so obvious that their correction cannot generate any controversy, regarding the Judgment or decision of the Court. By the same token, such errors must be of such nature that their correction would not change the substance of the Judgment or alter the clear intention of the Court. In other words, the Slip Rule does not confer upon a Court, any jurisdiction or powers to sit on appeal over its own Judgment, or, to extensively review such Judgment as to substantially alter it.” 9. As regard the issue of whether the sentence of (30) years imprisonment should have been canvassed during the appeal and in relation to the same this court is functus officio. In any case the three years’ sentence was meted in a different Criminal Case No. 1285 of 2011 and which is already served at this stage. 10. That then is the ruling herein DATED, DELIVERED AND SIGNED ON THIS 17TH DAY OF JUNE, 2026 GRACE L NZIOKA JUDGE In the presence of: Applicant present virtually No appearance for the respondent Mr Simon: Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8890/eng@2026-06-17 2
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