https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11903

Odongo v Republic (Miscellaneous Criminal Application E101 of 2025) [2026] KEHC 11903 (KLR) (30 July 2026) (Ruling) Neutral citation: [2026] KEHC 11903 (KLR) Republic of Kenya In the High Court at Homa Bay Miscellaneous Criminal Application E101 of 2025 PJO Otieno, J July 30, 2026 Between James Obonyo Odongo Applicant and Republic Respondent Ruling 1.Before the Court is the Applicant's undated Notice of Motion seeking; firstly, the benefit conferred under Section 333(2) of the Criminal Procedure Code by having the period spent in custody prior to the imposition of sentence taken into account in computing his sentence, and, secondly, an order that the remaining period of his custodial sentence be substituted with a non-custodial sentence. 2.From the record, the Applicant was convicted by the Senior Principal Magistrate's Court at Oyugis of the offence of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act. Upon conviction, he was sentenced on 4th September 2018 to serve a fifteen (15) years' imprisonment term. 3.The application is premised on the Applicant's assertion that he has undergone various rehabilitation and reform programs during his incarceration and has demonstrated positive behavioral change. He therefore urges the Court to grant him the benefit of Section 333(2) of the Criminal Procedure Code and to substitute the remainder of his custodial sentence with a non-custodial sentence. 4.Even though the applicant asserts having undergone several courses in rehabilitation, he exhibited no evidence of such. However, upon considering the application, the Court directed the Probation and Aftercare Service and the Kenya Prisons Service to prepare social inquiry reports to assist in determining the Applicant's suitability for a non-custodial sentence. 5.In compliance with those directions, a Probation and Aftercare Service Report dated 10th July 2026 was filed. The report indicates that the victim's father remains aggrieved by the offence. It further states that the victim, who is now twenty-three (23) years old, is married, and that the local community is receptive to the Applicant's reintegration. On the basis of its assessment, the Probation and Aftercare Service recommends that the Applicant be considered for early release on a non-custodial sentence. 6.On the other hand, the officer-In-Charge, Rachuonyo Prison, also filed a report to the effect that the applicant has been in prison for 8 years, as at 10th April, 2026, was now aged 79 years. The report adds that the applicant is of exemplary character during the entire duration of stay. He is reputed to be possessed of ability to make good decision and control other prisoners hence has been deployed to and works as a charge compound. 7.The Court has equally and carefully perused the record of the trial court. The record shows that the Applicant was arrested on 30th December 2017 and arraigned before the trial court on 2nd January 2018, when he took plea. He remained in custody throughout the trial until his conviction and sentencing on 4th September 2018. It is therefore evident that the Applicant remained in continuous custody from the date of his arrest until sentence was imposed. 8.Section 333(2) of the Criminal Procedure Code imposes a mandatory obligation upon a sentencing court to take into account the period an accused person has spent in custody before sentence is imposed. The rationale behind the provision is to ensure that an offender does not serve a period of imprisonment in excess of that lawfully intended by the sentencing court. A perusal of the sentencing proceedings does not reveal that the trial court complied with this statutory requirement by accounting for the period the Applicant had spent in pre-sentence custody. 9.The omission by the trial court to take into account the period the Applicant remained in custody prior to sentencing amounted to non-compliance with Section 333(2) of the Criminal Procedure Code. The Applicant is therefore entitled to the benefit of that provision. Accordingly, the Court directs that the Applicant's sentence shall be computed from 30th December 2017, being the date of his arrest. 10.The Court now turns to the Applicant's prayer that the remainder of his custodial sentence be substituted with a non-custodial sentence. The Probation and Aftercare Service Report indicates that the Applicant has served eight (8) years of the fifteen (15) year sentence imposed upon him, leaving a term of about three (3) years if he earns remission. The report recommends his early release and notes that the community is receptive to his reintegration, it also records that the victim's father remains dissatisfied with the Applicant's release. 11.As recorded before, the report from prison, when added to the advance age of the applicant, is equally favourable for his consideration for a non-custodial sentence. 12.The Court has given the application utmost due consideration in light of the very favourable recommendations alongside the nature and circumstances of the offence. It is noted that he was convicted of the serious offence of defilement, an offence that attracts severe penal sanctions owing to its grave impact on the victim and society and that a substantial portion of the sentence imposed by the trial court has been unserved. The age of the applicant and his social standing persuades the court that he is a vulnerable member of the society who deserves not only a chance to enjoy his sunset days in freedom but also leniency and sympathy. 13.In the circumstances, the Court is persuaded that this is an appropriate case deserving and meriting substitution of the remaining custodial sentence with a non-custodial sentence. This is done not merely because of the request by the applicant, but also on the judiciary deliberate efforts to decongest prison of inmates with less than three years of unserved prison terms. The court discern the applicant to merit being admitted to prison decongestion program. 14.In the result, the application succeeds in whole. The Applicant shall have the benefit of Section 333(2) of the Criminal Procedure Code, and his sentence shall be computed from 30th December 2017, being the date of his arrest. The prayer seeking substitution of the remainder of the custodial sentence with a non-custodial sentence is also allowed. He is is put on a probation term for one year to be supervised by the office of the County Director of probation, Homabay, who shall design a program to help him construct his life towards integration into the society to be a useful citizen. 15.It is so ordered. DATED, SIGNED AND DELIVERED AT LODWAR THIS 30TH DAY OF JULY 2026PATRICK J O OTIENOJUDGE