Susa v Republic (Criminal Miscellaneous Application E024 of 2026) [2026] KEHC 8122 (KLR) (9 June 2026) (Ruling)

Susa v Republic (Criminal Miscellaneous Application E024 of 2026) [2026] KEHC 8122 (KLR) (9 June 2026) (Ruling) Neutral citation: [2026] KEHC 8122 (KLR) Republic of Kenya In the High Court at Vihiga Criminal Miscellaneous Application E024 of 2026 RN Nyakundi, J June 9, 2026 IN THE MATTER OF ARTICLES 22(1),23(1),25(c), 27(10(4), 50(2)(p)(q), 159(2) AND 165(3) OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF SECTION 333(2) OF THE CRIMINAL PROCEDURE CODE CAP 75 LAWS OF KENYA Between Daniel Akweza Susa Applicant and Republic Respondent Ruling 1.Before this Court is notice of motion dated 7th May 2026, the applicant seeks the following orders:a.That, I was charged with the offence of defilement contrary to section 8[1] as read with section8[2] of the sexual offences act no.3 of 2006 and sentenced to serve 25 years imprisonment via COA Criminal Appeal No:193 OF 2017b.That, May the hon. Court be pleased to order that the time spent in remand custody be computed in the sentence. 2.Which application is based on the following grounds; -a.That, I was arrested on the 19th of July, 2013 and held at Mudete Police Station for 2 days and later remanded at Kodiaga prison.b.That, I was convicted to serve 25 years by the Court of appeal at Kisumu vide criminal appealno.193 of 2017.c.That, in aggregate I was in remand for a total of 1 Year & 3 Monthsd.That the respondents will not suffer any prejudice should prayers in this application be granted.e.That, I pray for the period spent in custody prior to the sentence to be computed into my sentence.f.That, the High Court has competent jurisdiction to hear and determine this application under Article 165(3)(b) of the Constitution of Kenya 2010 3.In support of the application is the annexed affidavit of Daniel Akweza Susa who deponed as follows:a.That, I am a Kenyan male adult of sound mind and duly competent to swear this affidavit in a Court of law.b.That, I was charged with the offence of defilement contrary to section 8[1] as read with section8[2] of the sexual offences act no.3 of 2006.c.That, the time I had spent in custody was not computed into my sentenced.That, I was sentenced to 25 years imprisonment by the Court of appeal at Kisumu vide criminal appeal no.193 of 2017.e.That, I pray for the period spent in remand [1 Year & 3 Months] be computed into my sentence.f.That, this Hon. Court is seized of competent jurisdiction under Article 165(3)(b) of the Constitution of Kenya 2010 to hear and determine this matter.g.That, the Hon. Court be pleased to invoke the provisions of Section 333(2) i.e the period spent in remand of eleven (11 months) be factored in the sentence to be awarded. Pursuant to Vincent Sila Jona and 87 Others vs Republic Petition No 15 of 2020 at Machakosh.That, I am a pauper who cannot incur any costs for preparation of this application thus pray that such costs be waived. Decision 4.Society strives for justice in its operation of the criminal justice system. Justice is achieved, in part, by the imposition of proper punishment offender.In our legal system, proper punishment is defined by the sentence that, in law, the offender deserves on conviction. An offender should not be required to suffer anything less or anything more. The application is based within the scope of Section 333(2) of the Criminal Procedure Code which provides for the criteria for a trial Court to give credit for the period an accused person suffers in pre-trial detention pending trial, conviction and sentence. The implicit premise in the foregoing, of course, is the pre-trial incarceration is effectively a form of punishment. This a premise that is broadly accepted in Kenya law, being the reason why sentences are reduce to account for the time spent in pre-trial detention. In fact, from a practical perceptive pre–trial detention is more punitive given the harsh conditions of many correctional facilities. 5.The guiding principles are as outlined in the case of Ahamad Ablofathi Mohammed & another v Republic [2018] eKLR where the Court of Appeal held that:“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, the Court was obliged to take into account the period that they 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 proportionality by the period spent in custody. It is not enough for the Court to merely state that it is 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. We find that the first appellate Court misdirected itself in that respect and should have directed the appellants’ sentence of imprisonment to run from the date of their arrest on June 19, 2012.” 6.This Court takes judicial notice that every day hundreds of criminal suspects around the Republic of Kenya are denied bail or if granted by a trial Court under Article 49(1)(h) they cannot afford the terms so that they can be freed to participate in Court proceedings while within their community. As is the case with many human rights concerns the poor who cannot afford bail or services of a Lawyer under Article 50(2)(g) of the Constitution would suffer the worst of the effects of remand detention. There can be no doubt remand detainees awaiting trial may suffer a range of nugatory effects such as the loss of his/her employment, if he/she was the main breadwinner the children may not go to school or even secure basic rights, there would also be health problems for both the inmates and their families, as he or she is the main provider of resources for the exercise of health rights, as if that is not enough there is disconnection from his/her family and the community which he/she has been associated with for a long time since birth. In addition, remandee detainees are exposed to torture, ill treatment or diseases which may arise during the period of detention. In Article 29 of the Constitution, it states that a person cannot be deprived of his/her freedom arbitrarily or without cause. This rights although on the face of it is drafted on general terms but is one of those rights which should be enjoyed by the citizens of Kenya even those who have been arraigned in Court as suspects of a cognizable offence. That is why the drafters of our Constitution 2010 provided for Article 49 which entitles an arrested person to be released on bail if there are no compelling reason to decline the same. The population of remandees in our correctional facilities is much bigger than those who have been convicted of various offences serving appropriate period as prescribed by law and imposed by the trial Court. Although the various liberty interests under Article 29 have been discussed at various forums including the Courts themselves there has not been a decisive jurisprudential decision whether a remandee/detainee should be released on a count of having spent a lengthy period in custody. There is therefore need for the superior Courts to interrogate the provisions of Article 50 (2)(e) as to the interpretation of the letter and spirit of the prescribed right for an accused person to have his/her trial begin and concluded without unreasonable delay. This is a conversation whose time has come for the Superior Courts to determine the canons of the language in the Constitution that the trial must begin and conclude without unreasonable delay. the Constitution does not stipulate a maximum period which once expired before the trial is concluded, entitles the accused to be released forthwith. I think this is the very reason why at the moment the Criminal Procedure Code has set out the provision of Section 333(2) for the credit period to be taken into account in the decision making of imposing an appropriate sentence. 7.In the instant application, the facts as pleaded by the Applicant shows that he spent 1 year and 3 months in remand custody which ought to have been computed by the trial Court during the sentencing process under Section 333(2) of the CPC. As such the committal warrant should be amended to take into account the 1 year 3 months as the discounted period from the total sentence of 25 years imprisonment. It is so ordered. DATED AND DELIVERED AT VIHIGA VIA CTS THIS 9TH DAY OF JUNE 2026…………………………………..R. NYAKUNDIJUDGE