https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11894

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT HOMABAY** **MISC. CRIMINAL APPLICATION NO. E007 OF 2026** **COLLINS OTIENO AWITI……...…………….……..……..…..…………....…….……APPLICANT** **VERSUS** **REPUBLIC…………………………………………………………..........….………..RESPONDENT** **RULING** 1. Before the Court is the Applicant's undated Notice of Motion seeking, firstly, the benefit conferred under Section 333(2) of the Criminal Procedure Code by having the period spent in custody prior to the imposition of sentence taken into account in computing his sentence. The Applicant further seeks a reduction of the sentence imposed upon him. 2. In support of the application, the Applicant avers in the affidavit of support that he has reformed during his incarceration and is in poor health. He informed the Court that he sustained an arrow wound, before being arrested, which requires surgical intervention which intervention is not available in prison due to lack of money for surgery. An officer from the Kenya Prisons Service, however, informed the Court that he was unaware of any demand for payment in respect of the proposed surgery. 3. The application was opposed by learned counsel for the Respondent, Ms. Oduor, who submitted that the present application is in the nature of a revision. Counsel contended that the Court's mandate in revision is limited to correcting errors, illegalities or improprieties apparent on the face of the record, and that the Applicant has not demonstrated the existence of any such error warranting the court's intervention. 4. The record shows that the Applicant was charged before the Chief Magistrate's Court at Homa Bay with the offence of grievous harm contrary to Section 234 of the Penal Code. Upon conviction, he was sentenced to ten (10) years' imprisonment. In passing sentence, the trial court directed that the sentence be computed from 4th December 2023, being the date on which the Applicant was first arraigned before the court. However, a perusal of the charge sheet reveals that the Applicant had been arrested on 28th November 2023 and remained in custody until his arraignment. 5. Section 333(2) of the Criminal Procedure Code obligates a sentencing court to take into account the period an accused person has spent in custody prior to sentencing when computing the sentence to be served. While the trial court acknowledged that the Applicant had been in custody before sentence, it erroneously computed the sentence from the date of arraignment rather than from the date of arrest. Consequently, the Applicant being entitled to the benefit of Section 333(2), his sentence shall be reckoned from 28th November 2023, being the date of his arrest. 6. The Court now turns to the Applicant's prayer for a reduction of sentence. Although the Court directed the Probation and Aftercare Service to prepare a social inquiry report to assist in determining the Applicant's suitability for sentence review, no report was filed. Nonetheless, the absence of the report does not, of itself, justify interference with the sentence imposed. The Applicant is serving a custodial sentence of ten (10) years' imprisonment and, computed from the date of his arrest, has served about two (2) years and eight (8) months. The offence of grievous harm is a serious offence involving grave bodily injury to another person and attracts severe penal sanctions. The Court has also taken into account the Applicant's plea of ill health and his assertion that he has reformed. While those considerations are not insignificant, they do not outweigh the seriousness of the offence or justify a reduction of an otherwise lawful sentence, particularly where a substantial portion of the sentence remains unserved. The situation would have been different if the remainder of the sentence was less than three years in which even the court would have considered an early release under the prison decongestion efforts. 7. The Court is therefore not persuaded that sufficient grounds have been established to warrant interference with the sentence imposed by the trial court. Save for the correction relating to the computation of sentence under Section 333(2) of the Criminal Procedure Code, the sentence remains lawful, proper and proportionate to the offence committed. 8. In the result, the application partially succeeds. The Applicant shall have the benefit of Section 333(2) of the Criminal Procedure Code, and his sentence shall be computed from 28th November 2023, being the date of his arrest. The prayer seeking a reduction of sentence is declined. Dated, signed and delivered at Lodwar this 30th day of July 2026 Patrick J O Otieno Judge