Mutunga v Republic (Criminal Revision Application E059 of 2025) [2026] KEHC 5072 (KLR) (9 April 2026) (Ruling)

Mutunga v Republic (Criminal Revision Application E059 of 2025) [2026] KEHC 5072 (KLR) (9 April 2026) (Ruling)

The trial court erred by failing to consider the time spent in custody prior to sentencing and by imposing an additional sentence under section 166 of the Criminal Procedure Code, which is unconstitutional and irregular; the sentence should be revised to account for time spent in custody and the order for detention at presidential pleasure set aside.

Citation
[2026] KEHC 5072 (KLR)
Parties
Applicant: Benjamin Kasyima Mutunga; Respondent: Republic
Court
High Court
Jurisdiction
Kenya
Judgment Date
9 April 2026
Case Number
Criminal Revision Application E059 of 2025
Procedural Posture
Criminal Revision / Ruling
Outcome
application partially allowed
Legal Topics
Sentencing, Mental Health, Revisionary Jurisdiction, Unconstitutionality of Statutory Provisions
Source Language
English
Criminal Law Constitutional Law Sentencing Mental Health Revisionary Jurisdiction Unconstitutionality of Statutory Provisions

Case Brief

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Parties

Benjamin Kasyima Mutunga

Applicant

Republic

Respondent

Procedural Posture

Criminal Revision / Ruling

Legal Issues

  1. 1 Whether the trial court erred by failing to consider time spent in custody prior to sentencing under section 333(2) of the Criminal Procedure Code
  2. 2 Whether the sentence imposed under section 166 of the Criminal Procedure Code was unconstitutional and irregular
  3. 3 Whether the court should exercise its revisionary jurisdiction to review the legality and propriety of the sentence

Ratio Decidendi

The trial court erred by failing to consider the time spent in custody prior to sentencing and by imposing an additional sentence under section 166 of the Criminal Procedure Code, which is unconstitutional and irregular; the sentence should be revised to account for time spent in custody and the order for detention at presidential pleasure set aside.

Court Disposition

application partially allowed

Orders

  • The period spent in custody from 18th March 2025 to 16th June 2025 shall be considered as part of the sentence.
  • The sentence under section 166(3) of the Criminal Procedure Code requiring the accused to be held in custody awaiting presidential order and to be taken to Mathari Hospital is set aside.