https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8793

Genge v Republic (Miscellaneous Criminal Application E063 of 2025) [2026] KEHC 8793 (KLR) (22 June 2026) (Ruling) Neutral citation: [2026] KEHC 8793 (KLR) Republic of Kenya In the High Court at Homa Bay Miscellaneous Criminal Application E063 of 2025 PJO Otieno, J June 22, 2026 Between Walter Odhiambo Genge Applicant and Republic Respondent (Arising from Mbita Senior Principal Magistrate Court Case No. 233 of 2017) Ruling 1.Before this court is an application dated 11th March 2025 brought under Section 333(2) of the Criminal Procedure Code seeking for orders of review of sentence. The applicant was charged of an offence of causing grievous harm contrary to Section 234 of the Penal Code. The particulars of the offence were that on the 19th March 2016, at Gwasi North Location in Suba sub-county within Homabay County, the Applicant unlawfully caused grevious harm to Monila Adhiambo Ouloby chopping off her right hand. 2.The Applicant pleaded not guilty of the charges and after full prosecution, the trial court found the Applicant guilty of the charges against him. He was subsequently convicted and sentenced to serve a jail term of 14 years imprisonment. 3.The Applicant has never appealed against the trial court decision. He only seeks for review of sentence and urges the court to invoke section 333(2) of the Criminal Procedure Code and consider the period he served in remand pending the hearing and determination of his case. The Respondent have not opposed the Application. Instead, they admit that the duration spent by the Applicant in remand custody after his arrest and prior to his conviction was never taken into consideration and urges the court to give effect of the same. 4.Section 333(2) of the Criminal Procedure Code provides that:-“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 sub section (1) has prior, to such sentence shall take account of the period spent in custody.” 5.It is clear from the above proviso that the law requires courts to take into account the period the convict spent in custody. In Ahamad Abolfathi Mohammed M & Another vs Republic [2018] eKLR, the Court of Appeal held as follows in line with the said provision of section 333(2):-“By dint of section 333(2) of the Criminal Procedure Code, the court was obliged to take into account the period that they had spent in custody before they were sentenced. Although the learned judge stated that he had taken into account the period the appellants had been in custody, he ordered that their sentence shall take effect from the date of their conviction by the trial court. With respect, there is no evidence that the court took into account the period already spent by the appellants in custody. “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 and still order the sentence to run from the date of the conviction because that amounts to ignoring altogether the period already spent in custody….” 6.In Bethwel Wilson Kibor vs Republic [2009] eKLR, the court expressed itself as follows in line with the foregoing:“By proviso to section 333(2) of the Criminal Procedure Code where a person sentenced has been held in custody prior to such sentence, the sentence shall take into account of the period spent in custody….” 7.According to the Judiciary Sentencing Policy Guidelines:“The proviso to section 333(2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody if the convicted person had been in custody during the trial. Failure to do so impacts on the overall period of detention which may result in an excessive punishment that is not proportional to the offence committed. In determining the period of imprisonment that should be served by an offender, the court must take into account the period in which the offender was held in custody during the trial.” 8.The Applicant arrested on 4th October 2017 and subsequently convicted on the 7th September 2021, a duration of three (3) years and eleven (11) months. The records indicates that the trial court took into account the Applicant’s mitigation. It however remained silent on the issue of the duration the applicant spent in remand. By virtue of Section 333(2) of the Criminal Procedure Code, the court was bound to take into account this duration in its sentencing. Undeniably, the trial magistrate denied the applicant his right under Section 333(2) of the Criminal Procedure Code. 9.In upshot, the court finds and holds that the instant application has merit and is hereby allowed. The Applicant shall serve the fourteen (14) years imprisonment less the duration of three (3) years and eleven (11) months he spent in custody prior to conviction. In other words, the court orders that the terms of the sentence shall be computed from the 4th October 2017 when the Applicant was arrested and put in custody. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 22ND DAY OF JUNE, 2026.PATRICK J O OTIENOJUDGE