https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8725

Osewe v Republic (Miscellaneous Criminal Application E030 of 2025) [2026] KEHC 8725 (KLR) (22 June 2026) (Ruling) Neutral citation: [2026] KEHC 8725 (KLR) Republic of Kenya In the High Court at Homa Bay Miscellaneous Criminal Application E030 of 2025 PJO Otieno, J June 22, 2026 Between Emmanuel Odhiambo Osewe Applicant and Republic Respondent (Arising from decision of the High Court at Homa Bay in HCC Case No. 7 of 2015 and Court of Appeal at Kisumu, Criminal Appeal No. 21 of 2019 Criminal Case 7 of 2015 ) Ruling 1.The Applicant was with three others, jointly charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the information were that on the 23rd January 2015, at Kakuma Village, Ratanga Sub-location, Central Kwabwai Location in Ndhiwa within Homa Bay County, the four accused persons jointly with others not before the court murdered Charles Juma Odongo. 2.Following the incident, the Applicant alongside the second and third accused, were traced and arrested after a few days of the incident. Specifically, the Applicant was taken into custody on 26th January 2015 and was held in remand custody throughout the trial. The fourth accused evaded arrest for five months before being apprehended. 3.The trial commenced before Majanja, J. on 14th December 2015, but was subsequently halted and reheard de novo before Omondi, J. on 27th July 2016 but the defense hearing was ultimately conducted and concluded before Karanja, J. on 27th November 2018. 4.In a judgment delivered on 6th December 2018, the trial court found the Applicant and his co-accused guilty of murder, convicted them, and sentenced each of them to serve twenty-five (25) years imprisonment. 5.Dissatisfied with both the conviction and sentence, the Applicant and his co-convicts preferred an appeal to the Court of Appeal at Kisumu, Kisumu Criminal Appeal No. 21 of 2019. Having fully heard the appeal, the court dismissed the appeal, affirming both the conviction and the twenty-five (25) year custodial sentence. 6.The Applicant has now approached the court, not in challenge of either the conviction or sentence, but by way of an application dated 25th February 2025, brought under Section 333(2) of the Criminal Procedure Code. His sole prayer is that this court in reviewing his sentence, takes into account the time he spent in pre-trial remand custody, a period which he contends was not taken into account by previous courts. 7.The Respondent has not opposed the application. Instead, it admitted that while the trial court noted the Applicant’s mitigation at the time of sentencing, the actual period spent by the Applicant in pre-trial remand custody was never accounted for or applied legally to proportionately reduce the final custodial sentence of twenty-five (25) years imposed by the trial court. Determination 8.The sole issue for determination by the court is whether the Applicant is entitled to the relief sought. To court, a sentence that fails to outrightly deduct pre-trial remand custody violates the express proviso of Section 333(2) of the Criminal Procedure Code. In Vincent Sila Jona & 87 Others v Kenya Prison Service & 2 Others (Petition 15 of 2020) [2021] KEHC 457 (KLR), the High Court established that a person subjected to a sentence that does not comply with Section 333(2) has a direct recourse to the court. The court held that the High Court's supervisory and revisionary jurisdiction under Section 362 of the Criminal Procedure Code can be invoked to correct such an illegality, and an appeal is not necessary in those circumstances. 9.Further, In Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR, the court agreed that while a judge is functus officio regarding the substantive aspects of a trial conducted by court of equal status, it however retains the inherent power to clarify and adjust the commencement date of a sentence to recognize the time spent in custody as mandated by Section 333(2). 10.Here, the Applicant was arrested on 26th January 2015 and remained in remand until his sentencing on 6th December 2018. The Applicant spent a total of one thousand four hundred and eleven (1,411) days, which translates to exactly three (3) years, ten (10) months, and ten (10) days in pre-trial remand custody. 11.Because the trial court ordered the twenty-five (25) year sentence to commence on the date of its pronouncement 6th December 2018 without deducting this period, the Applicant was subjected to a total detention period of twenty-eight (28) years, ten (10) months, and ten (10) days, thus a period longer than what the court imposed. That constitutes a clear violation of the mandatory duty imposed on the court by Section 333(2) of the Criminal Procedure Code. 12.Accordingly, the court orders that the Applicant’s Application dated 25th February 2025 is hereby allowed. The sentence of twenty-five (25) years imprisonment imposed upon the applicant shall be computed and deemed to have commenced on 26th January 2015, being the date of his arrest and initial placement in custody. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 22ND DAY OF JUNE, 2026PATRICK J O OTIENOJUDGE