https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9713

Nzioka v Republic (Criminal Revision E019 of 2026) [2026] KEHC 9713 (KLR) (30 June 2026) (Ruling) Neutral citation: [2026] KEHC 9713 (KLR) Republic of Kenya In the High Court at Machakos Criminal Revision E019 of 2026 NIO Adagi, J June 30, 2026 Between Francis Kyalo Nzioka Applicant and Republic Respondent Ruling 1.The Applicant Francis Kyalo Nzioka was charged with the offence of Rape contrary to section 3 (1)(a) (b) as read with section (3) of the Sexual Offences Act No.3 of 2006. In the alternative he was charged with committing an Indecent Act with a child contrary to Section 11(1) of the Sexual Offences Act No.3 of 2006. He was upon conviction sentenced to six (6) years and five (5) months imprisonment. 2.The Applicant has now filed a Notice of Motion application dated 24th March 2026 inviting this court to invoke the provisions of Section 333(2) of the Criminal Procedure Code and consider the period he spent in custody pending his trial. 3.The application is supported by the supporting affidavit sworn by the Applicant on 24th March 2026. The Applicant contends that he was arrested on 24/04/2020, he was released on bond on 03/12/2021 and re-arrested on 27/03/2023 he then remained in remand custody until when he was convicted and sentenced on 27/3/2025 to serve six (6) years and five (5) months. The Applicant avers that the three (3) years, seven (7) months and nine (9) days he was in custody during his trial were not factored in the sentence meted. 4.Section 333 (2) of the Criminal Procedure Code provides thus:-(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. 5.In Bethwel Wilson Kibor vs. Republic [2009] eKLR it was held:“By proviso to section 333(2) of Criminal Procedure Code where a person sentenced has been held in custody prior to such sentence, the sentence shall take account of the period spent in custody. Ombija, J. who sentenced the appellant did not specifically state that he had taken into account the 9 years period that the appellant had been in custody. The appellant told us that as at 22nd September, 2009 he had been in custody for ten years and one month. We think that all these incidents ought to have been taken into account in assessing sentence”. 6.I have perused the trial court’s record and I have established that in passing sentence and while referring to the Supreme Court decision in Republic vs Joshua Gichuki & Others Petition No. E018 of 2023, the trial court stated as follows: -“The Supreme court affirmed the Constitutionality of the mandatory sentences under the Sexual Offences Act. The minimum sentence is ten (10) years. However, under section 333(2) of the Criminal Procedure Code, a court is mandated to consider the time spent in custody during trial. According to the proceedings, the accused was in custody from the date of arrest, 25th April 2020 to 2nd December 2020 when he was released on bond. He jumped bail and was re-detained in custody from 28th March 2023 to 27th March 2025 when he was convicted. The cumulative period he has been in detention is about 3 years and 7 months. I therefore sentence the accused to the remainder of this period; 6 years and 5 months.” 7.From the above, this court finds that the trial magistrate took into account and applied the requirements under Section 333 (2) of the CPC during sentencing. 8.In the end, I find that the application dated 24th March 2026 to be without merit and the same is dismissed in its entirety.It is so ordered. This file is closed. RULING DATED & SIGNED AT MACHAKOS THIS 30TH JUNE 2026NOEL ADAGIJUDGEDELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 30TH JUNE 2026