https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8127

Ating’a v Republic (Criminal Miscellaneous Application E036 of 2026) [2026] KEHC 8127 (KLR) (9 June 2026) (Ruling) Neutral citation: [2026] KEHC 8127 (KLR) Republic of Kenya In the High Court at Vihiga Criminal Miscellaneous Application E036 of 2026 RN Nyakundi, J June 9, 2026 Between Alfred Ating’a Applicant and Republic Respondent Ruling Background 1.The historical litigation of this criminal case arises from the following facts upon the DPP exercising his constitutional right to indict the offender Alfred Ating’a and then charged of the following counts: First Count he was charged of defilement contrary to Section 8(1) of Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on diverse dates between 17th June to 19th June 2024 at [Particulars Withheld] village, [Particulars Withheld] Sub location in Emuhaya Sub County within Vihiga County intentionally caused his penis to penetrate the vagina of G.N, a child aged 14 years. 2.In the Alternative Count, the Applicant was charged of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on diverse dates between 17th June to 19th June 2024 at [Particulars Withheld] village, [Particulars Withheld] Sub Location in Emuhaya Sub County within Vihiga County intentionally touched the vagina of G.N, a child aged 14 years with his penis. 3.Now before this Court is notice of motion dated 19th May 2026, the Applicant seeks the following orders:a.Spent.b.Spent.c.May this Court be pleased to waive any fee/cost involved and see to it that the applicant will be preset the hearing thereof.d.That this application is solely based on the period spent in remand custody which was not factor during the original trial.e.That any other orders this Court shall deem just and fit to the applicant. 4.The application is based on the following orders:a.That my constitutional rights will be violated if relief sought will not be grantedb.That, the applicant was arrested and charged for the offence of defilement, hence sentenced to 18 imprisonmentc.That, the delay was occasioned due to empty promises by my family members/relative to engage advocate.d.That during the original sentencing, the trial Court failed to consider the whole period the Applicant’s in remand custody.e.That the applicant was arrested on 19.07.2024 and sentenced on 16.07.2025 which accumulates to 1yr in remand custody pending the trial.f.The applicant is a pauper and in prison. 5.In support of the application is the annexed affidavit of one Alfred Ating’a who deponed as follows:a.That I am an adult male Kenyan Citizen hence competent and indisposition to make oath and this affidavit.b.That, I was arrested, charged for the offence of defilement contrary to section 8(1) as read with sec8(3) of the SOA NO.3 of 2006 and sentenced to 18 Years imprisonment at PM'S Court at Vihiga.c.That, I was arrested and sentenced to 18 years imprisonment vide CRC.NO.E040 of 2024 at Vihiga.d.That, I was arrested on 19.07.2023 and later sentenced on 16.07.2024 which accumulates to 1 year remand custody pending the trial.e.That, I do not wish to lodge an appeal to this Court but seek orders of the Court that my discrete sentence commence from the day of my arrest rather than date of conviction.f.That, the applicant is a pauper and a laymang.That, I will suffer irreparable loss if orders sought will not be granted. Decision 6.Society strives for justice in its operation of the criminal justice system. Justice is achieved, in part, by the imposition of proper punishment offender. In our legal system, proper punishment is defined by the sentence that, in law, the offender deserves on conviction. An offender should not be required to suffer anything less or anything more. The application is based within the scope of Section 333(2) of the Criminal Procedure Code which provides for the criteria for a trial Court to give credit for the period an accused person suffers in pre-trial detention pending trial, conviction and sentence. The implicit premise in the foregoing, of course, is the pre-trial incarceration is effectively a form of punishment. This a premise that is broadly accepted in Kenya law, being the reason why sentences are reduce to account for the time spent in pre-trial detention. In fact, from a practical perceptive pre–trial detention is more punitive given the harsh conditions of many correctional facilities. 7.The guiding principles are as outlined in the case of Ahamad Ablofathi Mohammed & another v Republic [2018] eKLR where the Court of Appeal held that:“The second is the failure by the Court to take into account in a meaningful way, the period that the appellants had spent in custody as required by section 333(2) of the Criminal Procedure Code, the Court was obliged to take into account the period that they spent in custody before they were sentenced. Although the learned judge stated that he had taken into account the period the appellants had been in custody, he ordered that their sentence shall take effect from the date of their conviction by the trial Court. With respect, there is no evidence that the Court took into account the period already spent by the appellants in custody. “taking into account” the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionality by the period spent in custody. It is not enough for the Court to merely state that it is has taken into account the period already spent in custody and still order the sentence to run from the date of the conviction because that amounts to ignoring altogether the period already spent in custody. It must be remembered that the proviso to section 333(2) of the Criminal Procedure Code was introduced in 2007 to give the Court power to include the period already spent in custody in the sentence that it metes out to the accused person. We find that the first appellate Court misdirected itself in that respect and should have directed the appellants’ sentence of imprisonment to run from the date of their arrest on June 19, 2012.” 8.This Court takes judicial notice that every day hundreds of criminal suspects around the Republic of Kenya are denied bail, or if granted by a trial Court under Article 49(1)(h) they cannot afford the terms so that they can be freed to participate in Court proceedings while within their community. As is the case with many human rights concerns the poor who cannot afford bail or services of a Lawyer under Article 50(2)(g) of the Constitution would suffer the worst of the effects of remand detention. There can be no doubt remand detainees awaiting trial may suffer a range of nugatory effects such as the loss of his/her employment, if he/she was the main bread winner the children may not go to school or even secure basic rights, there would also be health-problems for both the inmates and their families, as he or she is the main provider of resources for the exercise of health rights, as if that is not enough there is disconnection from his/her family and the community which he/she has been associated with for a long time since birth. In addition, remandee detainees are exposed to torture, ill treatment or diseases which may arise during the period of detention. In Article 29 of the Constitution it states that a person cannot be deprived of his/her freedom arbitrarily or without cause. These rights although on the face of it is drafted on general terms but is one of those rights which should be enjoyed by the citizens of Kenya even those who have been arraigned in Court as suspects of a cognizable offence. That is why the drafters of our Constitution 2010 provided for Article 49 which entitles an arrested person to be release on bail if there are no compelling reason to decline the same. The population of remandees in our correctional facilities is much bigger than those who have been convicted of various offences serving appropriate period as prescribed by law and impose by the trial Court. Although the various liberty interests under Article 29 have been discussed at various forums including the Courts themselves there has not been a decisive jurisprudential decision whether a remandee detainee should be released on a count of having spent a lengthy period in custody. There is therefore need of Superior Court to interrogate the provisions of Article 50 (2)(e) as to the interpretation of the letter and spirit of the prescribed right for an accused person to have his/her trial begin and concluded without unreasonable delay. This is a conversation whose time has come for the Superior Courts to determine the canons of the language in the Constitution that the trial must begin and conclude without unreasonable delay. the Constitution does not stipulate a maximum period which once expired before the trial is concluded, entitles the accused to be released forthwith. I think this is the very reason why at the moment CPC then set out the provision of Section 333(2) for the credit period to be taken into account in the decision making of imposing an appropriate sentence. 9.It is incumbent on the national judicial authorities to ensure that the pretrial detention of an accused person is factored in the final judgment. To this end they must examine all the facts for or against the existence of genuine requirement in the public interest justifying with due regard to the principle of presumption of innocence, a departure from the rule in respect of individual liberty and state them out in their decision to give effect to the Bill of Rights in our Constitution. The Applicant has shown that he was in remand custody and therefore entitled to the credit period with effect from 19th July 2023. The committal warrant therefore should be amended forthwith to entitle the Applicant the credit period. Orders accordingly. DATED AND DELIVERED AT VIHIGA VIA CTS THIS 9TH DAY OF JUNE 2026…………………………………R. NYAKUNDI**JUDGE**