https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11680

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT CHUKA** **MISC. CRIMINAL APPLICATION NO. E056 OF 2025** **JAVAN MASINZA MAINA..............………….APPLICANT** **VERSUS** **REPUBLIC ……………………………………. RESPONDENT** **RULING** 1. The Application before me seeks revision of sentence. It is brought pursuant to section 333 (2) of the Criminal Procedure Code. 2. The Applicant Javan Masinza Maina was charged with the offence of stealing by servant contrary to section 281 of the Penal Code. The particulars of the offense are that the diverse dates between 1st February 2021 and 28th February 2021 at Nturiri market and Ntirigi market, Maara sub-county within Tharaka Nithi County with others not before the court, being a servant to Boniface Miriti stole conductor wires, shackles and connecting wires all valued at Kshs.5,065,929 the property of Kenya Power and Lighting Company which came into his possession by virtue of his employment. 3. At the conclusion of the trial the Applicant was convicted and sentenced on 12th May 2025 to serve 4 years’ imprisonment by Hon. Gandani (then CM). 4. The Applicants undated Application received in court on 13th August 2025, set out numerous grounds, which all revolve around the fact that he was sentenced to 4 years; that the time he spent in pre-trial custody was not taken into consideration, and; that he was likely to serve an excessive sentence. 5. The Applicant made oral submissions urging the court to take into consideration the time he spent in pre-trial custody and reduce his sentence proportionally. 6. The Application is opposed by the Respondent. In submissions dated 20th April 2022, the Respondent stated that the trial court did explicitly state that it had considered the pre-trial custody and deducted the period from the sentence hence the lenient sentence of 4 years’ imprisonment. That the trial court exercised its discretion in arriving at this exceptionally lenient sentence. 7. I have considered the Application. This courts revisionary jurisdiction is provided for under section 362 of the Criminal Procedure Code which states:- **“The High court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.”** 1. In undertaking revision, the court has powers under section 354 of the Criminal Procedure Code. **“(ii) alter the finding, maintaining the sentence, or, with or without altering the finding, reduce or increase the sentence; or** **(iii) with or without a reduction or increase and with or without altering the finding, alter the nature of the sentence;** **(6) Nothing in subsection (1) shall empower the High Court to impose a greater sentence than might have been imposed by the court which tried the case.”** 1. In the present case, I called for the trial file. The record shows that the Applicant was tried and convicted. *Prima facie* there was nothing irregular with either the trial or the sentence. The penalty under section 281 of the Penal Code is up to 7 years’ imprisonment upon conviction. 2. The Applicant states that he was in pre-trial custody for a period of 1 year 6 months which the trial court did not factor into his sentence. 3. According to the charge sheet, the Applicant was arrested on 25th June 2021. He took Plea on 29th June 2021 and was granted bond of Kshs.1,000,000 or in the alternative cash bail of Kshs. 500,000/=. He was unable to meet the terms and on 21st December 2022, he asked for reduction of the bond terms where upon the court granted a bond of Ksh.50,000/= or cash bail of 20,000/=. The Applicant’s bond approval was granted on 22nd December 2022 meaning that he had been in custody between 22nd December 2022 and 25th June 2021 when he was arrested a period of 1 ½ years. 4. Upon conviction on 10th April 2025, the court cancelled the Accused’s bond awaiting sentencing. He was subsequently sentenced on 12th May 2025. 5. In sentencing the Applicant, the court was silent on whether it had taken into consideration the pre-trial and post-conviction custody. 6. Section 333(2) of the Criminal Procedure Code provides:- **“333 (1) 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.** **(2) 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.”** 1. In **DS v. Republic [2022] KEHC 2502 (KLR),** the court reinforced the importance of giving 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 Bethwel Wilson Kiror vs. Republic [2009] eKLR) has also explained and buttressed the 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 consideration.”*** 1. I am persuaded that the trial court was in error when it failed to consider the pre-trial and post-conviction custody. 2. The Application succeeds to the extent that the applicant’s 4 years’ sentence shall be recomputed and deducted by the one and a half years that he was in custody prior to being convicted and sentenced. Orders accordingly. **Ruling delivered, dated and signed at Chuka this 27th day of July, 2026.** **..........................** **R. LAGAT - KORIR** **JUDGE** **Ruling delivered in the presence of Applicant acting in person, Ms Rukunga for the Republic; Muriuki (Court Assistant)**