https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8124

Karanja & another v Republic (Criminal Miscellaneous Application E032 of 2026) [2026] KEHC 8124 (KLR) (9 June 2026) (Ruling) Neutral citation: [2026] KEHC 8124 (KLR) Republic of Kenya In the High Court at Vihiga Criminal Miscellaneous Application E032 of 2026 RN Nyakundi, J June 9, 2026 Between Fred Karanja 1st Applicant Nicholas Abwa 2nd Applicant and Republic Respondent Ruling 1.Before this Court is notice of motion dated 15th May 2026, the Applicant seeks the following orders:a.This Hon. Court is clothed with proper jurisdiction to hear and determine matters of this nature pursuant to Article 65(3)(a) C.O.K 2010.b.The consonants of section 333(2) of the Criminal Procedure Code be invoked.c.The cost/fee involved in preparation and determination of this matter be waived. 2.Based on the grounds that:a.The Applicants were arrested on 3.01.2024 and convicted on 19.09.2025; never went out on bond hence spent 1 year 9 months in remand custody prior to conviction.b.The Applicants will have served more than the imposed sentence if the relief sought herein is not granted hence unfair.c.The Applicants are in prison hence unable to raise the required fee/cost for preparation and disposal of the matter herein. 3.In support of the application is the annexed affidavit of Fred Karanja who deponed as follows:a.That I am a Kenyan male adult of sound mind hence competent to swear this affidavit.b.That I was arrested, charged, convicted and sentenced to serve seven (7) years imprisonment for the offence of Robbery with Violence c/s 296(2) of the penal codec.That I do pray that the consonants of section 333(2) of the criminal procedure be invoked for the reasons, arguments and grounds adduced in the Notice of Motion.d.That I am in prison hence unable to raise the required fee/cost needed for preparation and disposal of the matter herein preparation and disposal of the matter herein. Decision 4.The Applicant in this case has moved the Court under the letter and spirit of Section 333(2) of the CPC. The primary framework for crediting time on remand is anchor in the law and the primary legal instrument generally referred as the Criminal Procedure Code. It is both procedural and substantive in managing the case management together with the statutory provisions in ensuring the fair and proportionate administration of justice. Credit for time spent in custody is also underpinned under Art 50(2) (a) of the Constitution which states:a.To be presumed innocent until the contrary is proved. 5.In Abdula Nabulure & 2 others vs Uganda, Supreme Court Criminal Appeal No. 009 of 1978 held that:A conviction based solely on visual identification evidence invariably causes a degree of uneasiness because such evidence can give rise to miscarriages of justice. There is always the possibility that a witness though honest may be mistakenWhere the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused, which the defence disputes, the judge should warn himself and the assessors of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. The reason for the special caution is that there is a possibility that a mistaken witness can be a convincing one and that even a number of such witnesses can all be mistaken. The judge should then examine closely the circumstances in which the identification came to be made, particularly, the length of time the accused was under observation, the distance, the light, the familiarity of the witness with the accused. All these factors go to the quality of the identification evidence. If the quality is good, the danger of a mistaken identity is reduced but the poorer the quality, the greater the danger.In our judgment, when the quality of identification is good, as for example, when the identification is made after a long period of observation or in satisfactory conditions by a person who knew the accused well before, a Court can safely convict even though there is no 'other evidence to support to identification evidence; provided the Court adequately warns itself of the special need for caution. If a more stringent rule were to be imposed by the Courts, for example if corroboration were required in every case of identification, affronts to justice would frequently occur and the maintenance of law and order greatly hampered. When, however, in the judgment of the trial Court, the quality of identification is poor, as for example, when it depends solely on a fleeting glance or on a long observation made in difficult conditions; if for instance the witness did not know the second accused before and saw him for the first time in the dark or badly lit room, the situation is very different. In such a case the Court should look for 'other evidence' which goes to support the correctness of identification before convicting on that evidence alone. The 'other evidence' required may be corroboration in the legal sense; but it need not be so if the effect of the other evidence available is to make the trial Court sure that there is no mistaken identification." 6.From this case law the Court established important principles that guide the application for pretrial detention; custody or bail should be used as a tool of last resort. Essentially it emphasizes the principles that custody and bail with stringent condition should be used only as a last resort particularly for the youth and those advanced in age describe by the Constitution as “marginalized or vulnerable”. There is a Constitution imperative founded on the drafting of Section 333(2) of the CPC. Have in mind the following provisions;(1)Every person is equal before the law and has the right to equal protection and equal benefit of the law.(2)Equality includes the full and equal enjoyment of all rights and fundamental freedoms.(4)The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, color, age, disability, religion, conscience, belief, culture, dress, language or birth.The pretrial detention of an accused person also threatens the provisions of Art 28 on the right to human dignity and 29 freedom and security of the person. 7.That is the very reason why circumstances on pretrial detention demands additional credit in the event the offender or accused person has been found guilty, convicted and subjected to a sentencing process which culminates in a custodial sentence. While credit is typically calculated mathematically, the Court acknowledges that there may be rare cases where the interests of justice demand extra credit for restrictive bail conditions. Any such credit is applied to the overall sentence and is not purely a mathematical exercise. 8.From the facts of this application, it is manifestly clear that the Applicants were not able to take advantage of Article 49(1)(h) of the Constitution to be released on bail as one of the entitlement right unless there exist compelling evince not to have them released on bail pending trial. As a result of this the custodial sentence of 7 years shall be effected to commence on the 3rd of January 2024 in consonant with Section 333(2) of the CPC. There shall be therefore an amendment on committal warrant to prison to reflect the credit period when the Applicants were on pre-detention period. Orders accordingly. DATED AND DELIVERED AT VIHIGA VIA CTS THIS 9TH DAY OF JUNE 2026…………………………………..R. NYAKUNDIJUDGE