https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12439

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISUMU** **MISC. CRIMINAL APPLICATION NO. E060 OF 2026** **DAVID ONYANGO OTIENO…………………………………..APPLICANT** **VERSUS** **REPUBLIC………………………….………………………..….RESPONDENT** **RULING** 1. The Applicant herein, vide his notice of motion dated 6th May, 2026 seeks an order for the review of his sentence, so that the period that he spent in custody awaiting conclusion of his trial is taken into account, in line with *Section 333(2)* of the *Criminal Procedure Code, Cap 75 Laws of Kenya,* which provides that: **333(2) 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. I have gone through the record of the lower court and note that during his trial, the Applicant remained remanded in custody for a cumulative period of 314 days, pending the conclusion of his trial. He was ultimately convicted and thereafter sentenced on 17th December, 2025 to serve 2 years imprisonment for the offence of burglary and 2 years imprisonment for the offence of stealing. The trial court further ordered that the sentences would run concurrently. 2. The learmed trial Magistrate stated as follows when sentencing the Applicant: ***“Mitigation noted. Taking note that the accused has been in custody since February, 2025, he is sentenced to serve 2 years for the offence of burglary and 2 years for stealing. Sentences to run concurrently.”*** 1. It is clear from the record of the trial court, which is before me, that the period that the Applicant remained in custody while his trial proceeded was not properly taken into account by the trial court, as provided for under *Section 333(2)* of the *Criminal Procedure Code.* 2. The Court of Appeal in ***Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR*** held that: - ***““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…”.*** 1. The *Judiciary Sentencing Policy Guidelines* provides that: ***“The proviso to section 333(2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody if the convicted person had been in custody during the trial. Failure to do so impacts on the overall period of detention which may result in an excessive punishment that is not proportional to the offence committed. In determining the period of imprisonment that should be served by an offender, the court must take into account the period in which the offender was held in custody during the trial.”*** 1. From the authority and the text above, the learned trial was under the obligation to reduce the sentence proportionately by an equal period with that the Applicant had spent in remand custody. The trial court should have ordered that the precise period of 314 days be reduced from the sentence, or that his sentence runs from the date of plea as he was never released while his trial proceeded. 1. In the result, and considering the foregoing, the Applicant’s application is merited. I allow it and review the sentence only to the extent the sentences of 2 years imprisonment on the two counts will run from 7th February, 2025, when he took plea. The committal warrant shall be amended accordingly. 2. This file is closed. DELIVERED (virtually) DATED and SIGNED this 21st day of July, 2026. **JOE M. OMIDO** **JUDGE** APPLICANT: Present, virtually. RESPONDENT: **Ms. Muema.** COURT ASSISTANTS: **Mr. Ngoge** & **Mr. Juma.**