Anuro v Republic (Criminal Revision E083 of 2025) [2026] KEHC 4511 (KLR) (9 April 2026) (Ruling)

Anuro v Republic (Criminal Revision E083 of 2025) [2026] KEHC 4511 (KLR) (9 April 2026) (Ruling) Neutral citation: [2026] KEHC 4511 (KLR) Republic of Kenya In the High Court at Homa Bay Criminal Revision E083 of 2025 PJO Otieno, J April 9, 2026 Between Tyson Martin Anuro Applicant and Republic Respondent (Arising from the original conviction and sentence of Hon. Nicodemus N. moseti (SPM) in CMC SO Case No. 5 of 2016 and the subsequent Appeal decision, Homabay, HCRA NO. E006 of 2021) Ruling 1.Before the court is an application made in the above-mentioned case seeking the enforcement of section 333(2) the criminal procedure code. The Applicant was charged for the offence of Defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act. 2.The particulars of the offence stated that on the 2nd day of February 2016 at around 2100hrs at [Particulars Withheld] Gwassi East Location Suba Sub-County within Homabay County, the Applicant unlawfully and unintentionally caused his penis to penetrate the anus of a minor E.B.O aged 13 years. The Applicant also faced an alternative charge 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 charge were that on the date, time and place of the main charge, the Applicant unlawfully and unintentionally touched the anus of E.B.O, a minor aged 13 years. 3.The Applicant was arraigned on the 4th of February 2016 before the trial court and whereby he pleaded not guilty after the charges were read and explained to him. Following full trial, the court found the prosecution to have proven its case to beyond reasonable doubt. In its judgement delivered on 16th February 2021, the court found the Appellant guilty of the preferred charges convicted him and consequently sentenced him to fifteen (15) years imprisonment. 4.Dissatisfied with both the conviction and sentence by the trial court, the Applicant preferred an appeal, Criminal Appeal No. E006 of 2021 at the High Court at Homa Bay. The appellate court, in its judgment delivered on the 29th day of March 2022 noted that while the fifteen-year sentence was contravening the provisions of Section 8(3) of the Sexual Offences Act which mandates a minimum of twenty years for victims aged between twelve and fifteen, the court declined to interfere with the sentence as the State had not sought an enhancement through a cross-appeal. Consequently, the appeal was dismissed in its entirety, and the conviction and sentence were upheld. 5.By way of a Notice of Motion Supported with Affidavit, both dated the 13th day of June 2025, premised on the provisions of Section 333(2) of the Criminal Procedure Code and seeks the court’s intervention in enforcing the mandatory requirement of the time spent in remand custody be deducted from the final sentence. 6.The Applicant contends that during the protracted five-year trial period from his initial arrest in February 2016 to his sentencing in February 2021, he remained in incarceration and that such period was not meaningfully accounted for by the trial court. The application is unopposed by the Respondent who instead urge the court to take into account the period spent by the Applicant in custody. Determination 7.Section 333(2) of the CPC stipulates that every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, provided that where the person so sentenced has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody. 8.In the case of Ahamad Abolfathi Mohammed M Another vs Republic (2018) eKLR, the Court of Appeal held as follows in line with the above:“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. By dint of section 333(2) of the Criminal Procedure Code, the court was obliged to take into account the period that they had 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 proportionately by the period already spent in custody. It is not enough for the court to merely state that it 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...” 9.In the instance, the record reveals the Applicant was arraigned on 4th February 2016, a day after his arrest. The Applicant pleaded not guilty of the charges and the trial proceeded for 5 years only to be convicted on 16th February 2021 to a fifteen years imprisonment. The trial court in its judgement never stated precisely that the five years taken in custody had been deducted from this fifteen-year term. 10.However, the computation of the Applicant's sentence is complicated by his conduct during the trial. The record indicates that the Applicant disappeared after the prosecution closed its case on 24th January 24, 2017, and upon his resurfacing, he claimed to have been remanded in a separate case in Migori. He absconded again when placed on his defence. The court holds that these periods where the Applicant was either at large or held in custody for a different case cannot be credited under Section 333(2) for this case. The remand custody period to be taken into account must be related to the matter for which the person is being sentenced. 11.Accordingly, the court finds that the application is unmeritorious in that the accused was duly granted bail and released from custody but was arrested later in an unrelated case. If he has to gain any benefit under section 333(2), that can only be done in relation to that other case and not here. 12.The application is therefore dismissed. Let the court file be closed. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 9TH DAY OF APRIL 2026.PATRICK J O OTIENOJUDGE