https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9566

Nganga v Republic (Criminal Revision E070 of 2025) [2026] KEHC 9566 (KLR) (2 July 2026) (Ruling) Neutral citation: [2026] KEHC 9566 (KLR) Republic of Kenya In the High Court at Thika Criminal Revision E070 of 2025 LN Mugambi, J July 2, 2026 IN THE MATTER OF SECTIONS 362, 364, 216 AND 207 OF THE CRIMINAL PROCEDURE CODE, CAP 75 LAWS OF KENYA AND IN THE MАTTER OF CRIMINAL CASE (S.O) 30 OF 2020 AT THE RUIRU MAGISTRATES' COURT Between Joseph Njenga Nganga Applicant and Republic Respondent (A Revision from original conviction and sentence of the Principal Magistrate’s Court at Ruiru (Hon. CK Kisiangani SRM) dated 2nd August, 2022 in Criminal Case No. (S.O) 30 of 2022) Ruling 1.The Applicant moved this Honourable Court by a Notice of Motion dated 9th September 2025, supported by an affidavit, in which he sought the revision of the sentence imposed by the lower Court on the ground that the period he had spent in custody prior to the sentence was not taken into account as mandated by Section 333 (2) of the Criminal Procedure Code. 2.The Applicant depones that he was sentenced to serve 10 years imprisonment for the offence of Defilement contrary to Section 8(1) of the Sexual Offences Act in the Criminal Case (S.O) NO.30/2020 at Ruiru Law Courts. 3.He deposed that the sentence was imposed in violation of Section 333 (2) of the Criminal Procedure Code because the period of two (2) years and two (2) months he had spent in remand before the sentencing was not taken into consideration. This is because the sentence was directed to run from the date of its pronouncement. 4.The Respondent responded to the Application through a Replying Affidavit sworn by Esther Torosi on 22nd January, 2026 in which she deposed to the fact that the Applicant was arrested on 3rd June, 2020 and judgment entered against him on 2nd August, 2022. She thus affirmed that the Applicant had been in custody for two (2) years and two (2) months. 5.However, Respondent, quoting from the trial court proceedings insisted that the period spent in custody was considered at the time of the sentence. At paragraph 6 of the Replying affidavit, she deponed thus:“6.That is not true that time spent in custody was not considered as the proceeding speak for itself (see last page of proceedings of date 2.08.2022)“I have considered the mitigation the fact that accused is a first offender and nature of the offence which came the complainant to live with trauma all her life. I have also considered the time that accused spent in custody since 10th June 2020. For these reasons I sentence him to (10) years imprisonment.” 6.In the submission by the Respondent, Counsel reiterated this fact and submitted that the offence of which the Applicant was found guilty of attracts a sentence of not less that fifteen years imprisonment hence the sentence of ten (10) years was lenient and legal as if the period spent in custody had not been considered he should have served twelve years and eight months. Analysis and Determination 7.The sole issue for determination is whether the trial court, in imposing the sentence upon the Applicant, duly took into account and factored in the period the Applicant had already spent in custody (remand) prior to the sentencing, as mandatorily required by Section 333 (2) of the Criminal Procedure Code. 8.The judgement of the trial court was delivered on 2nd August, 2022 in which it shows that the Applicant was convicted of the main charge of defilement under Section 8 (1) as read with Section 8 (4) of the Sexual Offences Act No. 3 of 2006. The Court expressed its finding as follows:“Accordingly, I find the accused guilty in the main charge and I hereby proceed to convict the accused for the offence of defilement contrary to Section 8 (1) as read with Section 8 (4) of the Sexual offences Act No. 3 of 2006, as per Section 215 of the Criminal procedure Code. Having made a finding on the main charge, I elect not to comment on the alternative.” 9.Further, it is necessary that I set out the charge the Applicant faced, which reads:“Defilement contrary to Section 8(1) as read with Section 8 (4) of the Sexual Offences Act No. 3 of 2006Particulars of the offence ‘On the 3rd day of June 2020 at [Particulars Withheld] Area of Ruiru Sub-County within Kiambu County intentionally and unlawfully caused his Penis to penetrate the vagina of L.W a child aged 16 years.’ 10.In pronouncing the sentence upon the Applicant on 2/8/22; the trial magistrate recorded as follows:“I have considered the mitigation, the fact that the accused is a first offender, the nature of the offence which will cause the complainant to live with the trauma all her life. I have also considered the time the accused has spent in custody that is since 10/6/2020. For these reasons, I sentence him to ten (10) years imprisonment.Right of Appeal 14 days.” 11.What the Court did in my considered view was to acknowledge that the Applicant had been in custody since 10/6/2020 but failed to explicitly demonstrate, in a verifiable manner, how it had factored the period into the sentence thereby making its sentence obscure on how the period spent was factored sentence in which is contrary to the principle of transparency and accountability in sentencing. The proviso to Section 333 (2) of the Criminal procedure Code is not discretionary, it is coached in mandatory terms that:“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” 12.Mere mention that the Applicant has been in custody from a particular date without actually showing how the period has been factored in the sentence imposed upon him does not satisfy the strict requirement of Section 333 (2) of the Criminal procedure Code. In fact, it offends the principle of transparency and accountability in sentencing. The benefit extended to the accused who has been custody by Section 333 (2) must be explicit, precise, clearly articulated and factually verifiable such as where the Court directs the sentence shall commence from the date of arrest or the date plea was taken (if the Applicant had been in custody) or when the Applicant was actually remanded. Further, the Court may also compute the period spent in custody and deduct it from the total period imposed and specify the remainder to be served. A mere statement that ‘I have considered the period spent in custody’ amounts to nothing more than an ambiguous and generic platitude which provides no assurance that the benefit contemplated by Article 333 (2) was conferred upon the accused at the time of sentencing. 13.Nevertheless, I have looked at the nature of the offence that the Applicant was convicted of and sentenced. It is a sexual offence under Section 8 (1) as read with Section 8 (4) of the Sexual Offences Act. 14.Section 8 (1) reads:Defilement(1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. 15.Section 8 (4) reads:A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years. 16.As is evident from the record, the Applicant was convicted of defilement of a girl aged 16 years and sentenced to 10 years imprisonment. The sentence that was imposed upon the Applicant is itself less than stipulated statutory minimum, hence is unlawful. 17.In Republic v Joshua Gichuki Mwangi [2024] KESC 14 KLR the Supreme Court overturned the decision of the Court of Appeal which had declared minimum sentences in sexual offences unconstitutional. In doing so, the Supreme Court distinguished between mandatory sentences (which wholly oust judicial discretion) and minimum sentences (which establish the statutory floor while preserving the Court’s powers to impose higher penalties in appropriate case). The Supreme Court reasoned that it was within the mandate of the legislature to prescribe sentencing parameters for criminal offences based on public policy considerations that informed the enactment of the law and the need to minimize inconsistency in sentencing for similar offences. The Supreme Court opined that Courts have no choice but to apply those sentences unless there is a specific challenge lodged against the constitutionality of the specific provision and a declaration is made to that effect. The thus stated:“(56)Mandatory sentences leave the trial court with absolutely no discretion such that upon conviction, the singular sentence is already prescribed by law. Minimum sentences however set the floor rather than the ceiling when it comes to sentences. What is prescribed is the least severe sentence a court can issue, leaving it open to the discretion of the courts to impose a harsher sentence….(63)Returning to the issue of the constitutionality or otherwise of minimum sentences under the Sexual Offences Act and discretion to mete out sentences under the said Act… the Court of Appeal failed to identify with precision the provisions of the Sexual Offences Act it was declaring unconstitutional, left its declaration of unconstitutionality ambiguous, vague and bereft of specificity. We find this approach problematic in the realm of criminal law because such a declaration would have grave effect on other convicted and sentenced persons who were charged with the same offence. Inconsistency in sentences for the same offences would also create mistrust and unfairness in the criminal justice system. Yet the fundamental issue of the constitutionality of the minimum sentence may not have been properly filed and fully argued before the superior courts below…(66)We must also reaffirm that, although sentencing is an exercise of judicial discretion, it is Parliament and not the Judiciary that sets the parameters of sentencing for each crime in statute… where a sentence is set in Statute, the Legislature has already determined the course, unless it is declared unconstitutional, based on sound principles and clear guidelines, upon which the Legislature should then act. Suffice to say, where Parliament enacts legislation, the Judicial arm should adjudicate disputes based on the provisions of the law.” 18.The sentence imposed by the trial court is below the statutory minimum and is thus illegal. The Court had no discretion to exercise against the statutory prescription going by the decision of the Supreme Court. However, I note that the Respondent did not give notice of enhancement of the sentence to the Applicant so that this matter can be addressed in this Application. Procedurally, it would be tantamount to condemning the Applicant unheard if I were to proceed and enhance the sentence suo motu without hearing the Applicant despite the patent illegality made by the trial court. For the reasons aforesaid, I will leave the sentence undisturbed at least for now. 19.In the circumstances, the Application under Section 333(2) of the Criminal Procedure Code is incapable of being granted. The upshot is that it is declined. DATED, SIGNED AND DELIVERED AT THIKA THIS 2ND DAY OF JULY 2026................................................L. N. MUGAMBIJUDGE