Jumba v Republic

hand. She reported the incident to her mother in the evening and was later taken to hospital and the police station where she recorded her statement. 6. The victim’s mother testied as PW4; she stated that she lived at Kaboswa Tea Estate next door to the appellant. On the material date, she had left for work in the morning, leaving the victim at home. On her way out of the estate, the witness exchanged greetings with the appellant who informed her that he would be going to work later. When PW4 returned home in the evening, she found her daughter crying, and she informed her that she had been deled by the appellant. The matter was escalated to the village elder and the appellant was arrested by security ocers at the Tea Estate, who escorted him to Nandi Hills Police Station, where the victim was issued with a P3 form. 7. The victim’s immunization card, produced before the trial court, indicated that she was 15 years old. 8. Henry Kibiwot Rotich (PW1) was in charge of the eight villages within Kaboswa Tea Estate. He testied that on 8th April 2014, he received a telephone call from the village elder, Irene Birgen informing him of a report of a delement at Septon Division. He went to the victim’s house and found PW4 who informed him that she had been informed of the delement by her daughter. 9. The appellant, who denied having committed the oence, attempted to escape into the tea plantation but was apprehended by security ocers and taken to Nandi Hills Police Station. PW1 conrmed that the appellant was an employee of Septon Division, pointing out that on the material date, his contract had lapsed and was in the process of renewal. 10. Stanley Cheruiyot (PW2) was a security ocer at the Tea Estate. He testied that on the material date, he was on duty when he received a telephone call from PW1 informing him that the victim had been deled. PW1 and PW2 went to the victim’s house and the victim informed them that she had been deled by the appellant, Francis who was living next door. PW2 testied that the victim, who appeared to be in pain, collapsed upon seeing them. When they went to the appellant’s house, they did not nd him, and he did not return until the following morning. Upon interrogation, the appellant denied committing the oence and thereafter attempted to escape. He was apprehended inside the tea plantation and taken to Nandi Hills Police Station where the witnesses recorded their statements. PW2 accompanied the victim and her mother to the hospital where the victim was examined and put on medication. 11. Irene Birgen (PW3) the village elder, testied that on the material date at around 6.00 pm, she was in her house when she was informed by PW1 and PW2 that there had been an incident at PW4’s house. The three witnesses went to PW4’s house where they found her with her daughter. The victim narrated how the incident happened, pointing the appellant as the deler. The appellant went missing from his house until the following day, when upon interrogation, he denied committing the oence, and thereafter made an escape into the tea plantation, from where he was apprehended and handed over to the police. 12. Dr. Paul Kipkorir Rono (PW6) produced a medical report dated 11th September 2015 prepared by Dr. Nyaora, who had conducted a mental assessment on the victim. According to the report, the victim had moderate severe mental retardation but had cognitive ability to identify people and places and to decipher anything serious done to her. Dr. Rono also produced the victim’s outpatient card. 13. The investigating ocer, Cpl Grace Wangui Mureithi testied as PW7. On 9th April 2014, she was on duty at Nandi Hills Police Station, when the complainant and her mother went to the police station and made a report of an incident of delement on 8th April 2014. She took both the complainant and the appellant for medical examination at Nandi Hills District Hospital, where respective P3 forms were https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1842/eng@2026-09-25 2

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completed. She produced the complainant’s immunization card showing that she was born on 15th June 1998. 14. Tom Kipkosgei Kilel (PW8) was a clinical ocer at Nandi Hills District Hospital. He examined the complainant on 9th April 2014 and a P3 form was completed on 10th April 2014. He conrmed that the complainant appeared to be mentally challenged but she had insight, as she could recognize people and places, and was only slow in answering questions. The medical examination revealed that the complainant had reddened labia minora, freshly torn hymen and a whitish discharge. A vaginal swab did not show the presence of spermatozoa. Overall, the ndings were consistent with delement. 15. PW8 also conrmed having examined the appellant on 10th April 2014 and found him to be a young man of generally good health, living with a medical condition. The witness produced the P3 forms for both the victim and the appellant, as well as a PRC form for the complainant. 16. Upon being placed on his defence, the appellant gave an unsworn statement, stating that on 1st April 2014, the complainant’s mother borrowed Kshs. 3,000 which she did not refund as agreed. The appellant claimed to have travelled to his rural home from where he returned on 7th April 2014 and resumed work. On 9th April 2014 at around 2.00 pm, while the appellant was resting in his house, PW1, PW2 and PW3 showed up. According to the appellant, the three asked him which woman he had disagreed with, to which he answered that he had only asked for his money from PW4. He was then arrested and taken to Nandi Hills Police Station and on 10th April 2014, he was taken to Nandi Hills District Hospital for medical examination. The appellant disclosed that he had had a medical condition since 2005. 17. The appellant’s appeal as documented in his undated memorandum of appeal, was predicated on the grounds that the learned Judge of the High Court erred in law in failing; to re-evaluate and re-analyse the evidence adduced before the trial court, to nd that the circumstances of identication were not conclusive, and to consider his defence. 18. However, when the appeal came up for hearing on 15th June 2026, the appellant, who had not led any submissions indicated that his only plea was that the pre-sentence period he had spent in custody be taken into account. Mr. Okaka, learned Principal Prosecution Counsel, appearing for the respondent, did not oppose the appellant’s plea. 19. The appellant’s plea is grounded in section 333(2) of the Criminal Procedure Code which provides as follows: (2) Subject to the provisions of section 38 of the Penal Code (Cap 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code. Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody. 20. The right of an accused person to have the period spent in custody accounted for in passing sentence has been armed in several decisions of this Court. In Omukhunya vs Republic [2025] KECA 237 (KLR) the Court stated: “ It is clear that the period during which an accused has been in custody before being sentenced must be taken into account in meting out the sentence.” https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1842/eng@2026-09-25 3

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21. In Ahamad Abolfathi Mohammed & Sayed Mansour vs Republic [2018] KECA 743 (KLR) the Court explained the import of the proviso to section 333(2) of the Penal Code, stating: “ Taking into account the period spent in custody must mean considering that period so that the imposed period is reduced proportionately by the period already spent in custody. It is not enough for the court to merely state that it has taken into account the period already spent in custody and still order the sentence to run from the date of conviction because that amounts to ignoring altogether the period already spent in custody. It must be remembered that the proviso to section 333(2) of the Criminal Procedure Code was introduced in 2007 to give the court power to include the period already spent in custody in the sentence that it metes out to the accused person.” 22. The Judiciary Sentencing Policy Guidelines pay homage to this basic principle by providing that: “ The proviso to section 333(2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody if the convicted person had been in custody during the trial. Failure to do so impacts on the overall period of detention which may result in an excessive punishment that is not proportional to the oence committed. In determining the period of imprisonment that should be served by an oender, the court must take into account the period in which the oender was held in custody during trial.” 23. According to the record, the appellant was rst arraigned in court on 11th April 2014 when plea was taken, and he remained in remand custody until 27th March 2015 when sentence was passed. Neither the trial court nor the rst appellate court took into account the pre-sentence period the appellant had spent in custody. 24. We therefore direct that the period between 11th April 2014 and 27th March 2025, be discounted from the 20 years’ prison term imposed on the appellant. The appeal succeeds to this extent only. DATED AND DELIVERED AT ELDORET THIS 25TH DAY OF SEPTEMBER, 2026. JAMILA MOHAMMED JUDGE OF APPEAL ................................ NDUMA NDERI JUDGE OF APPEAL ................................ L.M. NDOLO JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1842/eng@2026-09-25 4

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