https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8185

Kibe v Republic (Criminal Petition E004 of 2026) [2026] KEHC 8185 (KLR) (9 June 2026) (Judgment) Neutral citation: [2026] KEHC 8185 (KLR) Republic of Kenya In the High Court at Kibera Criminal Petition E004 of 2026 DR Kavedza, J June 9, 2026 Between James Wachira Kibe Petitioner and Republic Respondent (Being a petition for resentencing in original conviction and sentence delivered by Hon. E. Boke (SPM) on 19th October 2022 at Kibera Chief Magistrate’s Court Criminal Case No. 3606 of 2017 - Republic vs James Wachira Kibe & 2 others) Judgment 1.The petitioner, jointly with two others not before this court, was charged with the offence of robbery with violence contrary to section 295 as read with section 296(2) of the Penal Code (cap 63). Upon conviction after a full trial, he was sentenced to death. Aggrieved by the sentence, he filed Criminal Appeal No. 79 of 2023, which was partially successful, the sentence being substituted with a term of twenty-five (25) years' imprisonment. 2.The petitioner has now moved this court by way of a constitutional petition seeking resentencing. He contends that both the trial court and the appellate court failed to take into account the period he spent in remand custody as required under section 333(2) of the Criminal Procedure Code (cap 75). 3.I have considered the petition, the supporting affidavit, the applicable law, and the lower court record. The sole issue for determination is whether the period spent by the petitioner in remand custody was considered when sentence was imposed. 4.The proviso to section 333(2) of the Criminal Procedure Code imposes a mandatory duty upon a sentencing court to take into account the period an accused person has spent in custody before conviction and sentence. This principle was affirmed by the Court of Appeal in Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR and Bethwel Wilson Kibor v Republic [2009] eKLR, and reiterated by the High Court in Vincent Sila Jona & 87 Others v Kenya Prison Service & 2 Others [2021] eKLR. 5.It is therefore settled that, unless otherwise precluded by law, a sentencing court must take into account the period spent in pre-trial custody. 6.A perusal of the record shows that, in substituting the sentence, the appellate court expressly considered the period the petitioner had spent in remand custody. The judgment clearly directed that the substituted sentence of twenty five years had taken into consideration, the time spent in remand custody. That direction was deliberate, unequivocal, and formed an integral part of the sentencing order. There is therefore no ambiguity regarding the commencement date of the sentence, nor is there any basis upon which this court may revisit or reinterpret the court's determination. 7.In the circumstances, the petition is devoid of merit and is hereby dismissed in its entirety.Orders accordingly. JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 9TH DAY OF JUNE, 2026.D. KAVEDZAJUDGEIn the presence of:Petitioner - Present.Mutuma for the Respondent.Karimi - Court Assistant.