Ambuka alias Vampire v Republic (Criminal Miscellaneous Application E019 of 2026) [2026] KEHC 6771 (KLR) (19 May 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT VIHIGA** **CRIMINAL MISC APP. NO. E019 OF 2026** **IN THE MATTERS OF SECTION 333(2), 216, 323, 329 CRIMINAL PROCEDURE CODE** **AND** **IN THE MATTER OF PARAGRAPH 5.1.21 SENTENCING POLICY GUIDELINES REVISED 202** **AND** **IN THE MATTERS OF ARTICLE 22,23 (3), 50(2) (P), 25 (C), 50(2)(Q),159(2) a, b, d CONSTITUTION OF KENYA 2010** **AND** **IN THE MATTERS OF ROBBERY WITH VIOLENCE CONTRARY TO SECTION 296(2) OF THE PENAL CODE** **CLINTON KHAYUNDI AMBUKA Alias VAMPIRE.…..………………….APPLICANT** **VERSUS** **REPUBLIC…………………………………………………..……………….RESPONDENT** **Coram: Before Justice R. Nyakundi** **Leina Davies for the State** **RULING** 1. Before this Court is notice of motion dated 26th March 2026, seeking the following orders: 2. *Spent.* 3. *May his Court be pleased to make an order that the applicant's sentence should run from the date of an arrest.* 4. *Spent.* 5. *May this Court waive any cost/fee involved and see to it that the applicant shall be available at the here thereof.* 6. Based on the grounds that: 7. *Section 333(2) Provision of CPC.* 8. *Paragraph 5.1.21 sentencing Policy Guidelines Revised 2023.* 9. *Case of Ahmed Abolifathi Mohammed & Another Vs Republic (2018) eKLR* 10. *More grounds in the sworn affidavit and others to be at the hearing thereof.* 11. The application is supported by the annexed affidavit of the applicant who deponed as follows: 12. *That I am an adult male Kenyan citizen of sound mind hence competent and indisposition to make oath and swear this affidavit.* 13. *That, I was arrested, charged, convicted and sentenced to serve 20 years in an offence of Robbery with violence c/s 296(2) of the penal code.* 14. *That, the sentence was said to run from the time of pronouncement of the sentence rather than from the date of my arrest.* 15. *That, may the Court grant me this reprieve by making an order that my current sentence run from the date of my arrest.* **Decision** 1. This application is based in the provisions of Section 333(2) which provides as follows: *Subject to the provisions of section 38 of the Penal Code (Cap 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code. Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.* 1. It is imperative to mention under Article 2(5)(6) of the Constitution, International Law forms part of sources of Kenya Law to be applied in jurisprudential decision making. Therefore, International and Regional Instruments generally establish that pretrial detention must be a measure of last resort, used only when necessary and that any time spent in detention prior to conviction must be credited towards the final sentence. This is rooted in the presumption of innocence in line with Article 50(2)(a) of the Constitution. 2. It cannot be denied as of early 2026, the total prison population in Kenya is approximately **60,740**, with a significant proportion consisting of remandees (pre-trial detainees). Therefore, the justice sector cannot overlook the aspect of excessive and arbitrary pretrial detention as a form of human right abuse which affects thousands of remandees as the above statistics demonstrate and as a consequence it undermines the rule of law. It is also a fact that persons who have been arraigned before Court as suspects to a crime are presumed innocent until the contrary is proved by the State through the Office of the Director of Public Prosecution. It is not about just their right to liberty but pretrial detainees may lose their jobs if they were in gainful employment, their families both spouses and children suffer immensely in terms of securing their survival rights due to the long incarceration of their bread winners where the household depends on the male spouse to make provision financially for the basic rights. The negative impact to pretrial detention also sets in the physical, psychological, emotional and including some elements due to the conditions availed during their detention. 3. This is what the former *Special Rapporteur on Torture Sir Nigel Rodley A/56/156*, para 35 was referring to when he was making this statement: *[T]here needs to be a radical transformation of assumptions in international society about the nature of deprivation of liberty. The basic paradigm, taken for granted over at least a century, is that prisons, police stations and the like are closed and secret places, with activities inside hidden from public view. The international standards referred to are conceived of as often unwelcome exceptions to the general norm of opacity, merely the occasional ray of light piercing the pervasive darkness. What is needed is to replace the paradigm of opacity by one of transparency. The assumption should be one of open access to all places of deprivation of liberty. of course, there will have to be regulations to safeguard the security of the institution and individuals within it, and measures to safeguard their privacy and dignity. But those regulations and measures will be the exception, having to be justified as such; the rule will be openness.* 1. In the arena of International Law, the key instruments on this canon on pretrial detention include *the ICCPR (Articles 9 & 14) which protects against arbitrarily detention and guarantees a fair trial, the 1988 body of principles, which demands judicial oversight and credit for time served, and the Tokyo Rules (1990) which promote using alternatives to detention as a last resort.* Whereas the regional framework is clearly crystallizing in Europe with ECHR which prohibits excessive detention while in the American system the ACHR, emphasizes proportionality and necessity, prohibiting mandatory detention. The continent of Africa has also not been left behind as the African Commission’s Luandaguidelines set strict standards for limiting pretrial detention. In so far as the ICTY/ICTR Rule 101(C) is concerned it requires that all time spent in custody prior to conviction and sentencing is credited against the final sentence. See also *OHCHR Human Rights and Pretrial detention: A Handbook of International Standards, UNODC: Detention Prior to Adjudication and IACHR: Practical Guide on Measures to Reduce Pretrial Detention.* 2. In addition to the above instruments the following provisions are also on point with regard to pretrial detention against an accused person who has been charged before a Court of law but not yet released on bail as required under Article 49 (1)(H) of the constitution. Thus, the *Standard Minimum Rules for Non-Custodial Measures (Tokyo Rules) state that pre-trial detention “shall be” used as a means of “last resort in criminal proceedings” (6.1); that where the protection of society, prevention of crime, respect for law and rights of victims are not compromised, the police or prosecution “should be empowered to discharge the offender”. The Standard Minimum Rules for the Treatment of Prisoners (Rules 84-93) dedicate a section to prisoners under arrest or awaiting trial. These provisions act as guidelines for the prison authorities governing the conditions of detention of pre-trial prisoners, the privileges to which they are entitled and access to legal advice and assistance. In the case of young persons in conflict with the law, the Convention on the Rights of the Child states that the detention or imprisonment of a child shall be used “only as a measure of last resort and for the shortest period of time” (CRC 37(b)).* 3. The Applicant was sentenced to 20 years’ imprisonment as indicated in the committal warrant of 20th November 2025. The offence of robbery is a serious offence and in our legislative scheme it attracts the death penalty. however, from the look of things the Trial Court exercised discretion and sentenced the Applicant to 20 years’ custodial sentence. The question which arise in this review proceeding is whether the application falls within the principles elucidated in the **Bernard Gacheru** case by the Court of Appeal which remarked as follows: *“It is now settled law, following several authorities by this Court and by the high Court, that sentence is a matter that rests in the discretion of the trial Court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate Court will not easily interfere with sentence unless, the sentence is manifestly excessive in the circumstances of the case, or that the trial Court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial Court on sentence unless, anyone of the matters already states is shown to exist.”* 1. In the present case the Applicant submitted in his affidavit that this Court should apply the provision of Section 333(2) of the CPC so that he can benefit from enhanced credit to have his sentence commence from the date of his arrest. That in accordance to the principles in the legislation he was deprived of his liberty in a manner that was not in consonant with the components of principles of proportionality in sentencing. I have therefore taken the liberty to review the record in which the criminal case was anchored and it is correct that the sentence of 20 years imposed on 20th November 2025 failed to give credit for the time the applicant spent in presentence custody. That period within the constitutional imperative negatively impacted the Applicant person’s life, liberty, and his security. This is one person who was in custody from the date of his arrest. He is therefore entitled to receive credit for presentence custody as provided for under Section 333(2) of the CPC. As a consequence of this the framing of the impugned committal warrant to prison shall be amended to read the commencement date to be with effect of 12th June 2023. It is so ordered. **DATED AND DELIVERED AT VIHIGA THIS 19TH DAY OF MAY 2026.** **........................................** **R. NYAKUNDI** **JUDGE**