https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9236

Malik v Republic (Miscellaneous Criminal Application E086 of 2026) [2026] KEHC 9236 (KLR) (29 June 2026) (Ruling) Neutral citation: [2026] KEHC 9236 (KLR) Republic of Kenya In the High Court at Kibera Miscellaneous Criminal Application E086 of 2026 DR Kavedza, J June 29, 2026 Between Aman Malik Applicant and Republic Respondent Ruling 1.The Applicant was charged and convicted on four counts. Count I was for unlawful importation of drugs contrary to Rule 3(1) of the Pharmacy and Poisons Rules as read with section 51 of the Pharmacy and Poisons Act, Cap. 244. Counts II, III and IV were for transporting prohibited substances contrary to section 42(2)(a) of the Anti-Doping Act, No. 5 of 2016. He was sentenced to three (3) years' imprisonment on each count, the sentences to run concurrently. 2.The Applicant has filed the present application seeking revision of sentence on the ground that the trial court failed to comply with section 333(2) of the Criminal Procedure Code. He further prays that the remainder of his custodial sentence be substituted with a non-custodial sentence. 3.In his supporting affidavit, the Applicant contends that the trial court failed to take into account the period he allegedly spent in remand custody before sentencing. 4.I have considered the application, the supporting affidavit, the trial court record and the applicable law. The issue for determination is whether the trial court failed to comply with section 333(2) of the Criminal Procedure Code. 5.The proviso to section 333(2) of the Criminal Procedure Code imposes a mandatory duty on a sentencing court to take into account the period an accused person has spent in custody before sentence. This principle has been affirmed by the Court of Appeal in Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR and Bethwel Wilson Kibor v Republic [2009] eKLR, and reiterated by the High Court in Vincent Sila Jona & 87 Others v Kenya Prisons Service & 2 Others [2021] eKLR. 6.The record, however, shows that the Applicant was admitted to bail during the trial and was therefore not held in continuous remand custody in relation to this case. Consequently, there was no remand period requiring consideration under section 333(2) of the Criminal Procedure Code. 7.The Applicant has also sought substitution of the custodial sentence with a non-custodial sentence. No legal or factual basis has been advanced to justify such interference with the lawful sentence imposed. 8.Accordingly, the application is devoid of merit and is dismissed. Orders accordingly. RULING DATED AND DELIVERED VIRTUALLY THIS 29TH DAY OF JUNE 2026 ______________ D. KAVEDZAJUDGEIn the presence of:Applicant PresentMutuma for the RespondentKarimi Court Assistant