https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11701

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MILIMANI** **CRIMINAL DIVISION** **CRIMINAL REVISION NO. E134 of 2025** **IN THE MATTER OF:** **ARTICLES 22, 23, 25(c), 27, 28, 29, 45, 47, 48, 49, 50 AND 165 OF** **CONSTITUTION OF KENYA, 2010** **AND** **IN THE MATTER OF: SECTION 333(2) OF THE CRIMINAL PROCEDURE CODE (CAP 75 LAWS OF KENYA)** **AND** **IN THE MATTER OF: THE SENTENCE IMPOSED IN MILIMANI CHIEF MAGISTRATE'S COURT CRIMINAL CASE NO. MCCR/1564/2017-REPUBLIC V.** **ALABI TUNDE LATEEF** **AND** **IN THE MATTER OF: THE PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS UNDER THE CONSTITUTION OF KENYA (ENFORCEMENT OF** **BILL OF RIGHTS)** **BETWEEN** **ALABI TUNDE LATEEF--------------------------------------------APPLICANT** **-VERSUS-** **REPUBLIC----------------------------------------------------------RESPONDENT** **RULING** 1. The applicant was charged with offense relating to drug trafficking. The applicant was not a first offender thus he happened to be in prison on account of two criminal cases in which sentencing came at different times. 2. The applicant filed the instant Notice of Motion anchored on Articles 22, 23, 25(c), 27, 28, 29, 45, 47, 48, 49, 50, and 165 of the Constitution and Section 333(2) of the Criminal Procedure Code. 3. The applicant sought the following orders;- **a). THAT** this Honourable Court be pleased to review and revise the sentence imposed in Milimani Chief Magistrate's Criminal Case No. MCCR/1564/2017 so as to credit all the periods already spent in custody in full compliance with Section 333(2) of the Criminal Procedure Code. **b). THAT** a declaration be issued that the trial court's failure to credit custody time violated the Applicant's constitutional rights under Articles 25(c), 27, and 50(2)(p). **c). THAT** this Honourable Court be pleased to set aside and vacate the repatriation orders issued against the Applicant as they are discriminatory, unjust, and contrary to the Applicant's constitutional rights to dignity (Article 28), equality (Article 27), family unity (Article 45), and fair administrative action (Article 47). **d). THAT** an order directing the Officer-in-Charge, Nairobi Remand and Allocation Maximum security Prison, to recompute and adjust the Applicant's sentence in accordance with the law, taking into account custody time, remission, and lawful computation of sentence, and to release the Applicant forthwith upon lawful completion of sentence, unless otherwise held on a valid warrant. **e). THAT** such further or other orders as this Honourable Court may deem just and expedient in the interests of justice, fairness, and protection of fundamental rights. 1. The applicant affirmed in this application that he is a repeat offender but insisted that he remains entitled just like other prisoners to the full protection of the Constitution, including dignity, equality before the law, and fair treatment. 2. The applicant urged this court to consider ordering his immediate release upon lawful completion of sentence, unless held on another valid warrant. 3. The court taking into account the history of the applicant called for information from the prison authorities on the status of the applicant and the Officer In Charge wrote to this court indicating that;- “The inmate, ALABI TUNDE LATEEF, was admitted into lawful custody on 12th June 2025, pursuant to committal warrants issued by the Chief Magistrate's Court at JKIA in Criminal Case No. E087 of 2025. He had been charged with the offence of being in possession of narcotic drugs contrary to Section (1) of the Narcotic Drugs and Psychotropic Substances (Control) Act. Upon conviction, the court sentenced him as follows: 1. To pay a fine of Kshs. 100,000 on each count, in default to serve twelve (12) months' imprisonment on each count: and 2. In addition thereto, to serve three (3) years' imprisonment on each count: 3. The sentences were ordered to run concurrently, the custodial term to take effect upon payment of the fine or upon serving the default sentence. Subsequently, while serving the above sentence, the inmate was convicted in Criminal Case No. 1564 of 2017 before the Chief Magistrate's Court at Milimani, where he had been charged with trafficking in narcotic drugs on two (2) counts. Upon conviction on 14th August 2025, he was sentenced to serve eight (8) years' imprisonment on each count, the sentences to run concurrently. Pursuant to Section 37 of the Penal Code, the sentences were computed consecutively as follows: Four (4) years arising from the first conviction (JKIA Court); and Eight (8) years arising from the second conviction (Milimani Court). The cumulative custodial term therefore amounts to twelve (12) years' imprisonment. For purposes of sentence computation, the effective date of commencement was taken as 12th June 2025, being the date of the first conviction and admission into custody. Upon application of statutory remission in accordance with the Prisons Act, the inmate earned remission amounting to four (4) years. Accordingly, his computed date of release, subject to continued good conduct and absence of lawful impediment, is 12th October 2033, as per official prison records.” 1. The incarceration date of the applicant being 12th June 2025 the period between the first conviction of the applicant ought to have been factored in, in computing sentence in relation to the conviction arising from the Chief Magistrate’s Court JKIA being JKIA Criminal case No. E087 OF 2025. The prison authorities are therefore directed to reckon that period of pretrial remand before the first conviction in computing the sentence. 2. The second conviction came at a time when he was already serving sentence and therefore there was nothing to discount from the 8 years imprisonment in respect of Milimani Criminal Case No. 1564 of 2017. 3. Accordingly, therefore, the applicant’s application seeking the period spent in custody to be discounted from his sentence can only apply to the sentence in respect of the first conviction in accordance with Section 333(2) of the Criminal Procedure Code. The application therefore succeeds to that extent. 4. In regard to the order of repatriation of the applicant to his home country upon completion of his prison term this court is not minded to interfere with that order because the presence of the applicant in this country is no longer tenable considering his predisposition to commit offences related to Narcotic Drugs and Psychotropic substances contrary to the laws of Kenya. 5. The applicant does not therefore merit any further stay in the country when he completes his sentence. The two convictions are clear evidence of bad character thus placing him in the category of persons deserving to be immediately expelled from this country. The applicant has abused the priviledge extended to him by engaging in crimes of the nature giving rise to this application on foreign soil. The application in this regard therefore fails. 6. It is so ordered. **DATED, SIGNED and DELIVERED VIRTUALLY at NAIROBI this 2nd day of JULY 2026**. **A. M. MUTETI** **JUDGE** **In the presence of:** Court Assistant: Habiba Applicant - present Mogere for Respondent