https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10169
Because the record showed the applicant had been in continuous custody from arrest until conviction and there was no indication that the trial court considered that remand period when imposing sentence, the High Court held that section 333(2) of the Criminal Procedure Code was breached and revised the sentence to...
Source-derived case information.
- Citation
- [2026] KEHC 10169 (KLR)
- Parties
- Applicant: Antony Amwayi; Respondent: Republic
- Court
- High Court
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E116 of 2026
- Procedural Posture
- Miscellaneous Criminal Application / Sentence Review Application
- Outcome
- Application allowed.
- Judges
- ["DR Kavedza"]
- Legal Topics
- Sentence Review, Section 333(2) Criminal Procedure Code, Pre Trial Custody Credit, Commencement Date of Sentence, Attempted Defilement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Antony Amwayi
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Sentence Review Application
Legal Issues
- 1 Whether the sentencing court failed to account for the applicant's period in remand custody under section 333(2) of the Criminal Procedure Code.
- 2 Whether the sentence should be revised to commence from the date of arrest.
Ratio Decidendi
Because the record showed the applicant had been in continuous custody from arrest until conviction and there was no indication that the trial court considered that remand period when imposing sentence, the High Court held that section 333(2) of the Criminal Procedure Code was breached and revised the sentence to run from the date of arrest.
Court Disposition
Application allowed.
Orders
- The sentence imposed by the trial court shall run from 15th April 2017, being the date of the applicant's arrest.
- Orders accordingly.
Full Case Text
Judgment text and source record
1 paragraphs
Amwayi v Republic (Miscellaneous Criminal Application E116 of 2026) [2026] KEHC 10169 (KLR) (13 July 2026) (Ruling) Neutral citation: [2026] KEHC 10169 (KLR) Republic of Kenya In the High Court at Kibera Miscellaneous Criminal Application E116 of 2026 DR Kavedza, J July 13, 2026 Between Antony Amwayi Applicant and Republic Respondent Ruling 1.The applicant was charged with and convicted of the offence of attempted defilement contrary to section 9(1) as read with 9(2) of the Sexual Offences Act, No. 3 of 2006. He was sentenced to serve fifteen (15) years imprisonment. 2.The applicant has filed the present application dated 2nd June 2026 seeking sentence review. He contends that the trial court failed to consider the period spent in remand custody before sentencing, contrary to section 333(2) of the Criminal Procedure Code. He therefore urges the Court to revise the commencement date of his sentence. 3.I have considered the application, the grounds advanced, the record and the applicable law. 4.The proviso to section 333(2) of the Criminal Procedure Code imposes a mandatory duty on a sentencing court to consider the period an accused person has spent in lawful 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 by the High Court in Vincent Sila Jona & 87 Others v Kenya Prison Service & 2 Others [2021] eKLR. 5.It is therefore mandatory upon every sentencing court to consider the period spent in pre-trial custody unless the law expressly provides otherwise. 6.The record shows that the applicant was arrested on 15th April 2017 and remained in custody throughout the trial until his conviction on 15th May 2019, having never been released on bond or bail. I have examined the original trial court record and find no indication that the learned trial magistrate took the period spent in remand custody into account when passing sentence. The omission warrants this Court's intervention under section 333(2) of the Criminal Procedure Code. 7.Consequently, the application is merited and is hereby allowed. The sentence imposed by the trial court shall run from 15th April 2017, being the date of the applicant's arrest, in accordance with section 333(2) of the Criminal Procedure Code, Cap. 75, Laws of Kenya. Orders accordingly. RULING DATED AND DELIVERED VIRTUALLY THIS 13TH DAY OF JULY 2026.__________________D. KAVEDZAJUDGEIn the presence of:Applicant PresentMutuma for the RespondentKarimi Court Assistant.