https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11963
The applicant had been in custody from 24/4/2024 to 28/8/2024 before conviction and sentencing, and the trial court failed to comply with section 333(2) of the Criminal Procedure Code. The court therefore allowed the application and directed that the 25-year sentence commence from 24/4/2024.
Source-derived case information.
- Citation
- [2026] KEHC 11963 (KLR)
- Parties
- Applicant: Eliakim Eshikhati Otuma alias Omwami; Respondent: Republic
- Court
- High Court
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application E023 of 2026
- Procedural Posture
- Criminal Miscellaneous Application / Post Conviction Sentence Review / Application for Account of Time Spent in Custody
- Outcome
- Application allowed.
- Judges
- ["A Mabeya"]
- Legal Topics
- Defilement, Section 333(2) Criminal Procedure Code, Credit for Pre Sentence Custody, Sentence Commencement Date
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eliakim Eshikhati Otuma alias Omwami
Applicant
Republic
Respondent
Procedural Posture
Criminal Miscellaneous Application / Post Conviction Sentence Review / Application for Account of Time Spent in Custody
Legal Issues
- 1 Whether the applicant was entitled to have the period spent in custody taken into account under section 333(2) of the Criminal Procedure Code.
- 2 Whether the trial court failed to comply with section 333(2) when sentencing the applicant.
Ratio Decidendi
The applicant had been in custody from 24/4/2024 to 28/8/2024 before conviction and sentencing, and the trial court failed to comply with section 333(2) of the Criminal Procedure Code. The court therefore allowed the application and directed that the 25-year sentence commence from 24/4/2024.
Court Disposition
Application allowed.
Orders
- The Prison Service shall enter in its records that the 25-year sentence shall commence from 24/4/2024.
Full Case Text
Judgment text and source record
1 paragraphs
Otuma alias Omwami v Republic (Criminal Miscellaneous Application E023 of 2026) [2026] KEHC 11963 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KEHC 11963 (KLR) Republic of Kenya In the High Court at Kisumu Criminal Miscellaneous Application E023 of 2026 A Mabeya, J July 31, 2026 Between Eliakim Eshikhati Otuma alias Omwami Applicant and Republic Respondent Ruling 1.Eliakim Eshikhati Otuma alias Omwami (‘the applicant’) was on 28/8/2024 convicted of the offence of defilement of a minor. The offence was read to be contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act. 2.He was sentenced to serve 25 years imprisonment. He did not appeal against either the conviction or the sentence. 3.Against this background, he took out a Motion on Notice dated 17/1/2026 seeking that the duration he spent in custody pursuant to section 333(2) of the Criminal Procedure Code be taken into account and the sentence be reduced accordingly. 4.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 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.” 5.The record of the trial court shows that the trial court did not comply with the above provision. The applicant was tried while in custody. That period is between 24/4/2024 and 28/8/2024, a period of 120 days. 6.Accordingly, the Motion is meritorious. The Prison Service is directed to enter in its records that the sentence of 25 years shall commence from 24/4/2024.It is so ordered. DATED AND DELIVERED AT KISUMU THIS 31ST DAY OF JULY, 2026.A. MABEYA, FCI ArbJUDGE