https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8363
Because the applicant was in custody throughout trial and the subordinate court failed to credit that period in sentencing, section 333(2) of the Criminal Procedure Code required the sentence to take account of time already spent in custody. The High Court therefore reviewed the sentence and ordered that it commence...
Source-derived case information.
- Citation
- [2026] KEHC 8363 (KLR)
- Parties
- Applicant: COLLINS ODHIAMBO; Respondent: REPUBLIC
- Court
- High Court
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E013 of 2026
- Procedural Posture
- Criminal Sentence Review Application / High Court Ruling on Motion for Sentence Computation/review
- Outcome
- Application allowed
- Judges
- ["A Mabeya"]
- Legal Topics
- Defilement, Section 333(2) CPC Credit for Time Spent in Custody, Sentence Review, Custodial Period During Trial, Subordinate Court Sentencing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
COLLINS ODHIAMBO
Applicant
REPUBLIC
Respondent
Procedural Posture
Criminal Sentence Review Application / High Court Ruling on Motion for Sentence Computation/review
Legal Issues
- 1 Whether the applicant was entitled to have the period spent in custody during trial deducted from or accounted for in the sentence under section 333(2) of the Criminal Procedure Code.
- 2 Whether the High Court should review the sentence to commence from the date of arrest.
Ratio Decidendi
Because the applicant was in custody throughout trial and the subordinate court failed to credit that period in sentencing, section 333(2) of the Criminal Procedure Code required the sentence to take account of time already spent in custody. The High Court therefore reviewed the sentence and ordered that it commence from the date of arrest.
Court Disposition
Application allowed
Orders
- The applicant’s 10-year sentence shall commence on 20/11/2024, the date of arrest.
Full Case Text
Judgment text and source record
1 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISUMU CRIMINAL DIVISION MISC. CRIMINAL APPLN NO. E013 OF 2026 COLLINS ODHIAMBO .……………............................................. APPLICANT REPUBLIC ................................................................................... RESPONDENT - VERSUS - R U L I N G 1. COLLINS ODHIAMBO (‘the applicant’) was charged with the offence of defilement contrary to section 8(4) of the Sexual Ofences Act, No. 2 of 2006 before the Winam Principal Magistrates Court. After trial, he was found guilty, convicted and sentenced to 10 years’ imprisonment. 2. He never appealed against both the conviction and sentence. By a Motion on Notice dated 6/2/2026, he has sought for the review of his sentence by ordering that his sentence commence from the date of his arrest under the provisions of section 333(2) of the Criminal Procedure Code. 3. Section 333(2) of the Criminal Procedure Code provides: - “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 Page 1 of 3 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.” 4. It is clear from the foregoing that an accused is entitled to have the period he spent in custody during trial be considered during sentencing. If that is not considered, it is a proper ground for appeal. If the sentence is by the subordinate court, then an accused is entitled to either appeal to the High Court or seek review. 5. In the present case however, the applicant did not appeal. He was tried while in custody. He was arrested on 20/11/2024 and was in custody throughout the period of trial as the original record would show. This is so notwithstanding that he had been granted bond of Kshs.200,000/- which he seems not to have been able to raise. 6. In the circumstances, the trial court failed to apply the provisions of section 333(2) of the Criminal Procedure Code. 7. The application is allowed and the applicant’s sentence of 10 years is to commence on 20/11/2024 the date of arrest. Page 2 of 3 It is so ordered. DATED and DELIVERED at Kisumu this 12th day of June, 2026. A. MABEYA, FCI Arb JUDGE Page 3 of 3