https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7237

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT VIHIGA** **MISCELLANEOUS CRIMINAL APPLICATION NO E069 OF 2024** **EDWARD OPATI AMWAMU……………………….……………………….APPLICANT** **VERSUS** **REPUBLIC………………………………………………….…………………RESPONDENT** **RULING** **INTRODUCTION** 1. The Applicant herein was charged with the offence of incest contrary to Section 20 (1) of the Sexual Offences Act No 3 of 2006. He was also charged with an alternative charge of the offence of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. In Count II, he was charged with the offence of assault causing actual bodily harm contrary to Section 251 of the Penal Code Cap 63 (Laws of Kenya). 2. The Learned Trial Magistrate, Hon S.O. Ongeri (SPM), convicted him of the main charge and sentenced him to fifteen (15) years’ imprisonment. He did not appeal against the sentence. 3. On 21st June 2024, he filed a Notice of Motion application dated 21st May 2024 seeking that the period that he spent in remand while the trial was ongoing be taken into account. He urged this court to allow the same to run from the date of his arrest. 4. His Written Submissions were dated 22nd August 2025 and filed on 29th September 2025 while those of the Respondent were dated 31st July 2025 and filed on 6th October 2025. The Ruling herein is based on the said Written Submissions that both parties relied upon in their entirety. **LEGAL ANALYSIS** 1. The Applicant submitted that he was a relatively young man of twenty-eight (28) years and was remorseful for having committed the offence. He promised never to re-offend. 2. He pointed out that he was arrested on 6th July 2021 and was sentenced on 10th November 2022. He asked that the sentence commence from the date of his arrest, and not from the time of the pronouncement of the sentence. He relied on the provisions of Section 333(2) of the Criminal Procedure Code and Paragraph 5.1.21 of the Judiciary Sentencing Policy Guidelines, 2023. 3. On its part, the Respondent relied on the case of **Kericho Robert Kipkemoi Rono vs Republic Criminal Appeal No 15 of 2018** where the court therein held that the term **“shall be liable”** meant that the court had discretion to give a lower sentence than was prescribed. 4. It pointed out that it was satisfied with the sentence of fifteen (15) years that was meted out to the Applicant herein. It added that it had no objection to the said sentence running from the date of arrest. 5. Notably, Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya) provides that:- **“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”** (emphasis court). 1. The requirement under Section 333(2) of the Criminal Procedure Code was restated by the Court of Appeal in **Ahamad Abolfathi Mohammed & Another vs Republic [2018] eKLR**. 2. Further, Clause 4.6.20 (ix) of the Judiciary Sentencing Policy Guidelines provides that:- **“The Sentencing Court shall be guided by the sentencing principles and objectives set out in Part I of these Guidelines in all resentencing hearings. The following mitigating factors were set out by the Supreme Court as particularly relevant in a resentencing hearing:…** **Time already spent in prison by the convict…”** 1. A perusal of the Charge Sheet showed that the Applicant herein was arrested on 6th July 2021. He was convicted on 13th October 2022 and sentenced on 10th November 2022. Although he was granted bail, he did not appear to have posted the same. Notably, the Trial Court did not take into account the said period he spent in remand while the case was ongoing. The period between 6th July 2021 and 9th November 2022 ought to have been taken into account in line with the provisions of Section 333(2) of the Criminal Procedure Code. **DISPOSITION** 1. For the foregoing reasons, the upshot of this court’s decision was that the Applicant’s Notice of Motion application dated 21st May 2024 and filed on 21st June 2024 was merited and the same be and is hereby allowed. 2. It is hereby ordered and directed that the period the Applicant spent in custody between 6th July 2021 and 9th November 2022 be and is hereby taken into account when computing his sentence in accordance with Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya). 3. It is so ordered. **DATED** and **DELIVERED** at **VIHIGA** this **28th** day of **May** 2026 **J. KAMAU** **JUDGE**