https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7682

Rono v Republic (Criminal Miscellaneous Application E095 of 2022 & E159 of 2025 (Consolidated)) [2026] KEHC 7682 (KLR) (4 June 2026) (Ruling) Neutral citation: [2026] KEHC 7682 (KLR) Republic of Kenya In the High Court at Nakuru Criminal Miscellaneous Application E095 of 2022 & E159 of 2025 (Consolidated) PN Gichohi, J June 4, 2026 Between Geoffrey Rono Applicant and Republic Respondent Ruling 1.The Applicant herein moved this Court by two applications, being No. E095 of 2022 and Misc. Application No. E159 of 2025 arising from the same criminal case being CMCR No. E035 of 2021. In both applications, the Applicant seeks to have time spent in custody considered in computing the sentence of 10 years imprisonment passed by the trial court. 2.The Respondent orally stated that the two should be consolidated with No. E159 of 2025 being the main file. She therefore told the court that, having considered the typed proceedings before the trial court, she has no objection to the application. 3.This court has considered the lower court record and the applications by the applicant herein. Both are similar and therefore consolidated as one, being E159 of 2025. 4.It is noted that the trial stated when sentencing the accused:-“The accused person is found guilty as charged. Mitigation is considered. The accused person is sentenced to 10 (ten) years in jail.” 5.It is clear that the trial court did not comply with Section 333 ( 2) of the Criminal Procedure Code, which is mandatory in terms. To be specific, Section 333 of the Criminal Procedure Code provides that;-(1)A warrant under the hand of the judge or magistrate by whom a person is sentenced to imprisonment, ordering that the sentence shall be carried out in any prison within Kenya, shall be issued by the sentencing judge or magistrate, and shall be full authority to the officer in charge of the prison and to all other persons for carrying into effect the sentence described in the warrant, not being a sentence of death.(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.” 6.Indeed, the said provision of the law was explained in the Court of Appeal in the case of Ahamad Abolfathi Mohammed & another v Republic [2018] KECA 855 (KLR), where it was held that:-“…..The second is the failure by the Court to take into account in a meaningful way, the period that the appellants had spent in custody as required by section 333(2) of the Criminal Procedure Code…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. It must be remembered that the proviso to section 333(2) of the Criminal Procedure Code was introduced in 2007 to give the Court power to include the period already spent in custody in the sentence that it metes out to the accused person. We find that the first appellate Court misdirected itself in that respect and should have directed the appellants’ sentence of imprisonment to run from the date of their arrest on 19th June 2012.” 7.The lower court record shows that the accused/Applicant was arrested on 28th February 2021. He was arraigned in court for the plea on 2nd March 2021. 8.Though he was granted bond, there is nothing to show that he ever went out on bond. 9.In the circumstances, the application herein is merited. 10.The sentence of ten (10) years imprisonment shall run from the date of arrest, being 28th February 2021. DATED, SIGNED AND DELIVERED AT NAKURU THIS 4TH DAY OF JUNE 2026.PATRICIA GICHOHIJUDGEIn the presence of:Geoffrey Rono - ApplicantMs Anyumba for RespondentErickson- Court Assistant