A man convicted of defiling a 12-year-old boy and jailed will now serve 18 years from the time he was sentenced and not a 20-year sentence that was earlier ordered.
Anthony Kuria Wambui was sentenced on March 19, 2015, by a trial Magistrate, two and half years after he was arraigned on August 13, 2012.
The Magistrate made the sentencing order after mitigation.
Mitigation serves the purpose of attaining leniency and mercy from the courts so as not to suffer severe punishment.
In his application filed on February 18, 2020, the appellant wanted the court to consider the two years he had served in remand during the trial period.
However, the state opposed the appeal saying the mitigation to the effect that the appellant had spent two years in custody had been considered by the court before sentencing.
Wambui had earlier appealed against both the conviction and sentencing at the High Court on June 27, 2018, but his application was dismissed.
It is then that he proceeded to file another submission at the Court Appeal on grounds of his sentencing, abandoning the issue of conviction.
Considering the appeal, Justices Agnes Kalekye Murgor, Sankale Ole Kantai and Mwaniki Gachoka noted that the High Court erred in dismissing his first appeal.
"We note that the appellant is raising an issue of the lawfulness of the sentence, not its severity and therefore this is an issue that deserves our consideration," they added.
The appellate court noted that in considering mitigation, the trial court must note in the judgment in clear words that the time spent in custody was considered and the sentence imposed takes that period into account.
"The question of whether the time spent in custody was considered should not be left to conjecture, like in this appeal. We note that the first appellate court did not address this issue and just held that the sentence of 20 years imprisonment is legal," it added.
It directed that the appellant's sentence should be revised to run from the day of arraignment.
"Consequently, it is our finding and we so hold that this appeal has merit and is allowed to the extent that the sentence that was imposed on 19th March 2015 should run from the date that the appellant was arraigned in court, that is 13th August 2012 as he remained in remand throughout the trial," it said.
In the case, Wambui was found guilty of sodomising a 12-year-old in the Korogocho slums in Nairobi.
The offence was committed on August 3, 2012.
The prosecution presented six witnesses before trial magistrate Victor Wakumile including the victim, the sister, and his mother.
After the full trial, the magistrate ruled that the prosecution had proved its case beyond reasonable doubt and convicted Wambui.