https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11693

Mwenda v Republic (Miscellaneous Criminal Application E010 of 2026) [2026] KEHC 11693 (KLR) (27 July 2026) (Ruling) Neutral citation: [2026] KEHC 11693 (KLR) Republic of Kenya In the High Court at Chuka Miscellaneous Criminal Application E010 of 2026 RL Korir, J July 27, 2026 IN THE MATTER OF ARTICLES 22, 23, 25(D), 50, AND 51 OF THE CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF SECTION 333(2) OF THE CRIMINAL PROCEDURE CODE Between Felix Mwenda Applicant and Republic Respondent Ruling 1.The Application before me is brought pursuant to section 333(2) of the Criminal Procedure Code. The Applicant seeks that the period spent in pre-trial custody be included in his sentence and that his sentence be reduced proportionately. 2.The Application is opposed by the Respondent through submissions dated 20th April 2026. 3.The Applicant’s case is that failure to comply with section 333(2) of the Criminal Procedure Code offends Article 27(iii), 50(2) and 5(1) of the Constitution and will lead to an excessive sentence. 4.At the hearing of the Application on 23rd April 2026, the Applicant made oral submissions in which he stated that he was in pre-trial remand for 1 year and 1 ½ months prior to being convicted and sentenced. He prayed that the period be included in his sentence. 5.The Respondent relied on their written submissions in which they urged that there should be finality in litigation. That the Applicant had not demonstrated how his sentence violated the Constitution. They prayed that the Application be dismissed. 6.The only issue for my determination is whether the Applicant’s sentence should be revised to include the pre-trial custody period. 7.I have perused the trial record. It shows that the Applicant was arraigned before Hon. S.M. Nyaga (SRM) on 3rd August 2020 when he took plea. He was granted a bond of Kshs.1,000,000 on 10th August 2020. The record however shows that he was not released and was in pre-trial custody until he was convicted and sentenced on 16th September 2021. 8.As earlier stated, the Applicant was sentenced to serve 20 years’ imprisonment. In sentencing the Accused, the trial court stated:-“I have considered the nature and circumstances of the offence, the accused mitigation plus his mien and demeanor. The accused has clearly demonstrated to this court that he is not remorseful. He does not even plead with the court for leniency. The accused, a 31 years old man took advantage of the vulnerability of a sickly, poor old woman to commit the offence. His fraudulent means, led to the victim herein leaving her house in the middle of the night. Thereafter, actual violence was meted out on the victim leaving her with injuries and bleeding from the genitalia and vaginal walls.The accused’s clear brutal beastly acts were calculated and intentional. Accused threw caution to the wind that his victim was indeed the age of his mother. The accused clearly requires a long institutionalized mode of rehabilitation to serve as a deterrent. That is mainly so as it is clear to this court that cases of sexual violence on elderly women and girls of tender age are on the rise in this jurisdiction.For the offence of rape as charged and convicted in the main count, the accused is hereby sentenced to twenty (20) years imprisonment. Right of appeal explained.” 9.The Applicant further stated that he had filed an appeal to the high court which was dismissed. 10.Section 333(2) of the Criminal Procedure Code provides:-“333(2) Subject to the provisions of section 38 of the Penal Code 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.” 11.In the case of DS Vs. Republic [2022] KEHC 2502 (KLR) the court reinforced the importance of real-time effect under Section 333(2) Criminal Procedure Code, holding that:-“The Court of Appeal in Ahamad Abolfathi Mohammed & Another vs. Republic [2018] eKLR. (see also Bethwell Wilson Kibor vs. Republic [2009] eKLR has also explained and buttressed he absolute need for the court to give real-time effect of Section 333(2) of the Criminal Procedure Code in sentencing. And, that merely stating that you have taken account of time spent in custody is not sufficient if the sentence does not show that the period which an accused has been held in custody prior to being sentenced had been taken into account.” 12.In this case I have considered that the Applicant was in pre-trial custody for one year and 1 ½ months or 13 ½ months. 13.The Application succeeds to the extent that the Applicant’s 20-year sentence shall be deemed to run the 3rd of August 2020 being the date of arrest and arraignment in the trial court.Orders accordingly. RULING DELIVERED, DATED AND SIGNED AT CHUKA THIS 27TH DAY OF JULY, 2026...........................R. LAGAT-KORIRJUDGERuling delivered in the presence of the Applicant acting in person and Ms Rukunga for the State; Muriuki (Court Assistant).