https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12139

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISUMU** **MISC. CRIMINAL APPLICATION NO. E004 OF 2026** **ERICK OCHIENG OKOTH…………………………………….APPLICANT** **VERSUS** **REPUBLIC………………………….………………………..….RESPONDENT** **RULING** 1. The Applicant herein, vide his notice of motion dated 6th February, 2026 seeks an order for the review of his sentence, so that he may be accorded the least punitive sentence, so that he can be allowed to serve a non-custodial sentence. 1. The Applicant also seeks that the period that he spent in custody awaiting conclusion of her 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. The grounds upon which the application is premised are that the Applicant was arrested on 2nd December, 2017, subsequently charged with the offence of robbery with violence contrary to *Section 296(2)* of the *Penal Code,* and was convicted and sentenced to 20 years imprisonment by the trial court on 14th February, 2019. 2. I have perused the record of the trial court in *Maseno Criminal Case No. 534 of 2017* and the correct position is that the Applicant was convicted for the offences of robbery with violence contrary to *Section 296(2)* of the *Penal Code* and gang rape contrary to *Section 10* of the *Sexual Offences Act,* and was on 14th February 2019 sentenced to 20 years imprisonment on each count, with the court ordering the sentences to run concurrently. 1. The Applicant states that he appealed against both the conviction and sentence in *Kisumu High Court Criminal Appeal No. E04 of 2019,* but the appeal was dismissed, thereby affirming the sentence imposed by the trial court. 2. The Applicant contends that while his trial before the subordinate court proceeded, he remained in custody from the date of his arrest and therefore prays that this Court invokes *Section 333(2)* of the *Criminal Procedure Code* to direct that his sentence be computed from 2nd December, 2017, being the date of his arrest. 3. The Applicant further avers that he has fully participated in the rehabilitation and reform programmes offered while in prison and has demonstrated positive reform during his incarceration. 4. It is further asserted that the period already served is sufficient to meet the objectives of sentencing, namely deterrence, rehabilitation, retribution and the protection of the community. On that basis, the Applicant urges the Court to allow the application in its entirety. 5. The application is supported by the Applicant’s affidavit sworn on 5th February, 2026 in which he deposes that he was charged with the offence of robbery with violence contrary to *Section 296(2)* of the *Penal Code* before the trial court at Maseno, convicted on 14th February, 2019 and sentenced to serve twenty (20) years imprisonment. 6. He avers that he appealed against the conviction and sentence in *Kisumu High Court Criminal Appeal No. E04 of 2019,* but the appeal was dismissed, thereby leaving the sentence intact. 7. The Applicant further deposes that he was, prior to his trial before the subordinate court, arrested on 2nd December, 2017, arraigned on 14th December, 2017 and remained in custody until his matter was concluded on 14th February, 2019. His trial therefore lasted for 427 days. He therefore urges the Court to invoke *Section 333(2)* of the *Criminal Procedure Code* and direct that his sentence be computed from the date of his arrest. 8. The Applicant further states that he has actively participated in the rehabilitation and reform programmes offered in prison and has made positive use of the opportunities available to him during his incarceration. 9. Finally, the Applicant deposes that he has already served a sufficient period of imprisonment to achieve the objectives of sentencing, namely deterrence, rehabilitation, retribution and the protection of the community, and therefore prays that the application be allowed. 10. The Respondent resisted in part the Applicant’s motion vide the replying affidavit sworn on 24th June, 2026 by **Ms. Mercy Mutheu Muema,** Prosecution Counsel, in which she deposed that the Respondent does not oppose the Applicant’s prayer seeking the invocation of *Section 333(2)* of the *Criminal Procedure Code* so that the sentences may be reckoned from the date of the Applicant’s arrest. 11. She however states that the Respondent opposes the Applicant’s plea for a review, reduction or reconsideration of the sentences on account of rehabilitation, reform or the period already served. 12. The deponent further avers that the court record shows that the Applicant was convicted on his own plea in *Maseno Criminal Case No. 534 of 2017* of the offences of robbery with violence contrary to *Section 296(2)* of the *Penal Code* and gang rape contrary to *Section 10* of the *Sexual Offences Act,* and was on 14th February 2019 sentenced to 20 years imprisonment. The court ordered that the sentences would run concurrently. 13. **Ms. Muema** further deposes that the offence of robbery with violence under *Section 296(2)* of the *Penal Code* attracts the prescribed sentence of death and, consequently, the sentence of 20 years imprisonment imposed upon the Applicant was unlawful and manifestly inadequate. 14. Being of that view, **Ms. Muema** filed, alongside her replying affidavit, a notice of enhancement of sentence dated 24th July, 2026, vide which the Respondent seeks the enhancement of the sentence imposed upon the Applicant by the trial court in respect of the offence of robbery with violence contrary to *Section 296(2)* of the *Penal Code.* 15. The Respondent contends that although the Applicant was convicted of robbery with violence and sentenced to 20 years imprisonment, to run concurrently with a similar sentence imposed for the offence of gang rape, the sentence for robbery with violence was manifestly lenient and unlawful. 16. It is asserted that *Section 296(2)* of the *Penal Code* prescribes the mandatory sentence of death for the offence of robbery with violence and that the trial court lacked the discretion to impose any sentence other than the death penalty. Consequently, the imposition of a custodial sentence of 20 years is said to have constituted a fundamental error of law. 17. On that basis, the Respondent prays that this Court enhances the sentence imposed on the count of robbery with violence from 20 years imprisonment to the death penalty in accordance with *Section 296(2)* of the *Penal Code.* 18. From the pleadings and the rival positions taken by the parties, the following issues arise for determination the Applicant seeks two principal reliefs relating to his sentence. 19. First, he prays that the Court reviews the custodial sentence imposed upon him on account of his rehabilitation and the period already served, with a view to according him a lesser or non-custodial sentence. 20. Secondly, he seeks the benefit of *Section 333(2)* of the *Criminal Procedure Code* by having the period spent in custody prior to sentencing taken into account. 21. The Respondent does not oppose the latter prayer but resists the former. In addition, the Respondent has filed a notice seeking enhancement of the sentence imposed by the trial court on the count of robbery with violence. 22. I will begin with the prayer founded on *Section 333(2)* of the *Criminal Procedure Code.* The proviso to that section obligates every sentencing court to take into account the period spent by an accused person in lawful custody before sentence is pronounced. 23. The provision is couched in mandatory terms and seeks to ensure that an offender does not effectively serve a sentence longer than that intended by law merely because he remained in remand custody during trial. 24. The Court of Appeal in ***Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR*** emphasized that taking into account the period spent in custody requires more than a mere acknowledgment of its existence. The sentencing court must demonstrate that the pre-sentence custody period has been factored into the sentence imposed, failing which the offender would suffer double punishment. The court 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 record of the trial court, which is before me, shows that the Applicant was arrested on 2nd December, 2017, arraigned before the trial court and took plea on 14th December, 2017. He was thereafter continuously held in custody throughout the trial until he was convicted and sentenced on 14th February, 2019. The period between his arraignment and sentence was therefore 427 days, during which he was never admitted to bond. 2. I have carefully perused the proceedings and the sentencing remarks of the trial court. There is nothing on record to demonstrate that the learned trial Magistrate took into account the 427 days that the Applicant had already spent in custody before passing sentence. The omission entitles the Applicant to the benefit conferred by *Section 333(2)* of the *Criminal Procedure Code.* 3. Consequently, I find merit in that limb of the application. The trial court ought to have ordered that the sentence be computed from 14th December, 2017, being the date on which he was arraigned before the trial court and remained continuously in lawful custody until sentence was passed. 4. I now turn to the Applicant’s prayer inviting this Court to review or reduce his sentence on account of his rehabilitation, reform and the period already served. 5. While the Applicant urges the Court to substitute the custodial sentence with a lesser or non-custodial sentence, this Court must first satisfy itself that it possesses the requisite jurisdiction to grant such relief. 6. The Applicant was convicted, sentenced and thereafter exercised his right of appeal. His appeal against conviction and sentence was heard and determined by the High Court. This miscellaneous application is therefore not an appeal against sentence, nor is it a constitutional petition challenging the constitutionality of the sentence imposed. It is a miscellaneous application principally invoking *Section 333(2)* of the *Criminal Procedure Code.* 7. To the extent that the Applicant seeks a reconsideration of the propriety, proportionality or legality of the sentence imposed on grounds of rehabilitation or changed circumstances, this Court finds that such relief is not available through the present proceedings as this Court lacks jurisdiction to review or substitute the Applicant’s sentence on the grounds advanced in this application. 8. I therefore decline the Applicant’s invitation to review or reduce the sentence imposed upon him, save for giving effect to the mandatory provisions of *Section 333(2)* of the *Criminal Procedure Code.* 9. I now address the Respondent’s notice of enhancement of sentence. The Respondent contends that because *Section 296(2)* of the *Penal Code* prescribed the sentence of death, the trial court acted unlawfully by sentencing the Applicant to 20 years imprisonment and that this Court should therefore enhance the sentence to death. 10. It is not in dispute that the Applicant was sentenced on 14th February, 2019. By that time, the legal landscape had significantly changed following the decision of the Supreme Court in ***Francis Karioko Muruatetu & Another v Republic [2017] eKLR*** (***Muruatetu I***), delivered in 2017. 11. Following that decision, numerous decisions of the High Court and the Court of Appeal interpreted the Supreme Court’s reasoning as extending beyond murder to other offences carrying mandatory or mandatory minimum sentences, including robbery with violence under *Section 296(2)* of the *Penal Code.* 12. Acting within that prevailing jurisprudential environment, many trial courts exercised discretion in sentencing offenders convicted of robbery with violence. 13. It was only after the Supreme Court issued directions in ***Francis Karioko Muruatetu & Another v Republic; Katiba Institute & 5 Others (Amicus Curiae) [2021] KESC 31 (KLR) (6 July 2021) (Directions)*** (***Muruatetu II***) in 2021 that it became clear that the decision in ***Muruatetu I*** was confined strictly to the mandatory death sentence for murder under *Section 204* of the *Penal Code* and did not automatically apply to other offences carrying mandatory or minimum sentences. 14. In those circumstances, it cannot fairly be said that the trial court deliberately disregarded binding law as it stood in February, 2019 when the Applicant was sentenced. The sentence imposed reflected the prevailing judicial understanding at the time and cannot properly be revisited by the Respondent through the present miscellaneous application, which in any event was filed by the Applicant. 15. More importantly, the Respondent’s notice of enhancement is procedurally misplaced. The present proceedings were initiated by the Applicant through a miscellaneous application principally seeking the benefit of *Section 333(2)* of the *Criminal Procedure Code* and a review of sentence. 16. If the Respondent considered the sentence imposed by the trial court to be manifestly lenient, the proper recourse was to challenge that sentence through the appellate process in accordance with the *Criminal Procedure Code,* where the issue of enhancement could be determined within a properly constituted appeal and with the attendant procedural safeguards. 17. This Court therefore finds that the Respondent’s notice of enhancement of sentence is not properly before it in these proceedings and declines the invitation to enhance the Applicant’s sentence from 20 years imprisonment to death. 18. In the result, I find merit only in the Applicant’s prayer under *Section 333(2)* of the *Criminal Procedure Code*. The prayer for review or reduction of sentence is declined for want of jurisdiction, while the Respondent’s notice of enhancement of sentence is similarly declined as being procedurally incompetent in the context of the present miscellaneous application. 19. The Applicant’s application is in the premises allowed, only to the extent that the two sentences shall run from 14th December, 2017. 20. Orders accordingly. 21. This file is hereby closed. DELIVERED (virtually) DATED and SIGNED this 31st day of July, 2026. **JOE M. OMIDO** **JUDGE** APPLICANT: Present, virtually. RESPONDENT: **Ms. Muema.** COURT ASSISTANTS: **Mr. Ngoge** & **Mr. Juma.**