https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11243
The applicant had been in custody from 10th June 2024 throughout the trial, and the trial court record did not show that this period was considered when the sentence was imposed. That omission offended section 333(2) of the Criminal Procedure Code, so the court intervened and backdated the sentence to the date of...
Source-derived case information.
- Citation
- [2026] KEHC 11243 (KLR)
- Parties
- Applicant: DANIEL SIMIYU; Respondent: Republic
- Court
- High Court
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E109 of 2026
- Procedural Posture
- Criminal Revision / Sentence Review Application and Ruling
- Outcome
- Application allowed
- Judges
- ["DR Kavedza"]
- Legal Topics
- Robbery With Violence, Pre Trial Custody Credit, Section 333(2) CPC, Revision of Sentence Commencement Date
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
DANIEL SIMIYU
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Sentence Review Application and Ruling
Legal Issues
- 1 Whether the trial court complied with section 333(2) of the Criminal Procedure Code when sentencing the applicant.
- 2 Whether the sentence should be revised to account for time spent in pre-trial custody.
Ratio Decidendi
The applicant had been in custody from 10th June 2024 throughout the trial, and the trial court record did not show that this period was considered when the sentence was imposed. That omission offended section 333(2) of the Criminal Procedure Code, so the court intervened and backdated the sentence to the date of arrest.
Court Disposition
Application allowed
Orders
- The sentence imposed by the trial court shall run from 10th June 2024, the date of the applicant's arrest.
- The application for sentence review is allowed.
Full Case Text
Judgment text and source record
1 paragraphs
**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KIBERA** **CRIMINAL REVISION NO. E109 OF 2026** DANIEL SIMIYU……………………………...……………………APPLICANT VERSUS REPUBLIC…………………………………………………..…...RESPONDENT **RULING.** 1. The applicant was charged with and convicted for the offence of robbery with violence contrary to section 296(2) of the Penal Code. He was sentenced to serve fifteen (15) years imprisonment. 2. The applicant has filed the present application seeking sentence review. He contends that the trial court failed to consider the period spent in remand custody before sentencing, contrary to section 333(2) of the Criminal Procedure Code. He therefore urges the Court to revise the commencement date of his sentence. 3. I have considered the application, the grounds advanced, the record and the applicable law. 4. The proviso to section 333(2) of the Criminal Procedure Code imposes a mandatory duty on a sentencing court to consider the period an accused person has spent in lawful custody before sentence. This principle has been affirmed by the Court of Appeal in **Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR** and **Bethwel Wilson Kibor v Republic [2009] eKLR**, and by the High Court in **Vincent Sila Jona & 87 Others v Kenya Prison Service & 2 Others [2021] eKLR.** 5. It is mandatory for every sentencing court to take into account the period an accused has spent in pre-trial custody, unless the law expressly provides otherwise. 6. The record shows that the applicant was arrested on 10th June 2024 and remained in custody throughout the trial, having never been released on bond or bail. I have examined the original trial court record and find no indication that the learned trial magistrate took the period spent in remand custody into account when passing sentence. The omission warrants this Court's intervention under section 333(2) of the Criminal Procedure Code. 7. Consequently, the application is merited and is hereby allowed. The sentence imposed by the trial court shall run from 10th June 2024, being the date of the applicant's arrest, in accordance with section 333(2) of the Criminal Procedure Code, Cap. 75. Laws of Kenya. Orders accordingly. **Ruling dated and delivered virtually this 22nd day of July 2026.** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **D. KAVEDZA** **JUDGE** **In the presence of:** Applicant Present Mutuma for the Respondent Karimi Court Assistant.