https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8187

Hamisi v Republic (Criminal Miscellaneous Application E030 of 2026) [2026] KEHC 8187 (KLR) (9 June 2026) (Ruling) Neutral citation: [2026] KEHC 8187 (KLR) Republic of Kenya In the High Court at Vihiga Criminal Miscellaneous Application E030 of 2026 RN Nyakundi, J June 9, 2026 Between Erick Hamisi Applicant and Republic Respondent Ruling 1.Before this Court is notice of motion dated 15th May 2026, the Applicant seeks the following orders:a.Spent.b.The Court be pleased to waive any fee/cost involved as I am a pauper and in prisonc.May the Applicant commence his sentence from the date of arrest. 2.Which application is based on the following grounds:a.That the Applicant are serving a sentence that did not comply with Section 333(2) of the criminal procedure code.b.That the Applicant was arrested on 21/01/2024 and sentenced on 11/06/2025 which amount to 1 year, 5 months 21 days spent in remand custody, which were not discounted during the original sentencing.c.That the Applicant urge this Court to take into account the period spent while still on trial as required by law. 3.In support of the application is the annexed affidavit of one Cyrus Kavayi Onzere who deponed as follows:a.That I am a male adult of sound mind, much competent to swear this affidavit in a Court of law.b.That I was arrested, charged, convicted and sentenced to 5 years imprisonment vide CRC. No. 100 of 2014 at Vihiga.c.That I urge this Court to consider taking into account the period I spent in remand custody. Decision 4.From the facts of this case the Applicant tis seeking a remedy under Section 333(2) of the CPC; “A declaration that trial Courts are enjoined by Section 333(2) of the Criminal Procedure Code, in imposing sentences, other than sentence of death to take into account of the period spent in custody. A declaration that those who were sentenced in violation of the said Section are entitled to have their sentences reviewed by the high Court in order to determine their appropriate sentences. A declaration that Section 333(2) CPC applies to the original sentence as well as sentence imposed during sentencing..." 5.The interpretation of this provision found its way in the case of Abdula Nabulure & 2 others vs Uganda, Supreme Court Criminal Appeal No. 009 of 1978 held that:A conviction based solely on visual identification evidence invariably causes a degree of uneasiness because such evidence can give rise to miscarriages of justice. There is always the possibility that a witness though honest may be mistaken. Where the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused, which the defence disputes, the judge should warn himself and the assessors of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. The reason for the special caution is that there is a possibility that a mistaken witness can be a convincing one and that even a number of such witnesses can all be mistaken. The judge should then examine closely the circumstances in which the identification came to be made, particularly, the length of time the accused was under observation, the distance, the light, the familiarity of the witness with the accused. All these factors go to the quality of the identification evidence. If the quality is good, the danger of a mistaken identity is reduced but the poorer the quality, the greater the danger. In our judgment, when the quality of identification is good, as for example, when the identification is made after a long period of observation or in satisfactory conditions by a person who knew the accused well before, a Court can safely convict even though there is no 'other evidence to support to identification evidence; provided the Court adequately warns itself of the special need for caution. If a more stringent rule were to be imposed by the Courts, for example if corroboration were required in every case of identification, affronts to justice would frequently occur and the maintenance of law and order greatly hampered. When, however, in the judgment of the trial Court, the quality of identification is poor, as for example, when it depends solely on a fleeting glance or on a long observation made in difficult conditions; if for instance the witness did not know the second accused before and saw him for the first time in the dark or badly lit room, the situation is very different. In such a case the Court should look for 'other evidence' which goes to support the correctness of identification before convicting on that evidence alone. The 'other evidence' required may be corroboration in the legal sense; but it need not be so if the effect of the other evidence available is to make the trial Court sure that there is no mistaken identification." 6.This is an appeals Court and it does not have the discretion to dictate a rigid, mathematical formula for remand custody credit as sentencing is primarily the mandate of the trial Court. Instead Court used Article 25A, 27 and 50(2)(p)(q) of the Constitution and guided by Section 333(2) of the CPC to factor pretrial detention in to the final sentence. In my considered view even where parliament has prescribed mandatory minimum sentence which are Constitutionally permissible, the sentencing Court must always retain the discretion to depart from them if substantial and compelling circumstance exist. The period spent in pretrial detention is a primary factor in this judicial evaluation. 7.The Constitution is premised in the protection of rights and security of person and that is why it is provided for in the Bill of Rights under chapter 4 of the same Constitution. The Court in Ferreira v Levin NO and Others 1996 (1) SA 984 (CC) at para 170: “The primary, though not necessarily the only, purpose of s 11(1) of the Constitution is to ensure that the physical integrity of every person is protected. This is how a guarantee of 'freedom (liberty) and security of the person' would ordinarily be understood. It is also the primary sense in which the phrase, freedom and security of the person' is used in public international law. The American Declaration of the Rights and Duties of Man, the International Covenant on Civil and Political Rights, the European Convention for the Protection of Human Rights and Fundamental Freedoms, and the African Charter on Human and People's Rights, all use the phrase 'liberty and security of the person' in a context which shows that it relates to detention or other physical constraints”. 8.The facts represented to this Court has been reviewed and there is sufficient cause pre-detention credit period computed as one year 5 months and 21 days spent in remand custody pending finalization of his trial in which he was found guilty and convicted for the offence under the SOA in CR No. 100 of 2014 at Vihiga. As a consequence of which the Deputy Registrar of the High Court shall extract the amended committal of warrant to Prison which is indicative that the sentence of 5 years commenced date be effected from 21st January 2024. It is so ordered. DATED AND DELIVERED AT VIHIGA THIS 9TH DAY OF JUNE 2026…………………………………R. NYAKUNDIJUDGE