[2025] KEHC 1504 (KLR)
The court found that the sentencing judge, Lady Justice Olga Sewe, had expressly considered and factored in the period the applicant spent in remand custody before imposing the 15-year sentence for murder. The record of sentencing proceedings confirmed that the judge acknowledged the applicant had been in custody...
Source-derived case information.
- Citation
- [2025] KEHC 1504 (KLR)
- Parties
- Applicant: Andrew Musaina Kihungwa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition E037 of 2023
- Procedural Posture
- Criminal Petition / Ruling on Petition for Sentence Review Under Section 333(2) of the Criminal Procedure Code
- Outcome
- application dismissed
- Judges
- E Ominde
- Legal Topics
- Sentencing Principles, Remand Period Credit, Application of Section 333 2, Murder Conviction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Andrew Musaina Kihungwa
Applicant
Republic
Respondent
Procedural Posture
Criminal Petition / Ruling on Petition for Sentence Review Under Section 333(2) of the Criminal Procedure Code
Legal Issues
- 1 Whether the period spent in remand custody by the applicant was factored into his sentence as required by Section 333(2) of the Criminal Procedure Code.
- 2 Whether the applicant is entitled to further reduction of his sentence under Section 333(2) of the Criminal Procedure Code.
Ratio Decidendi
The court found that the sentencing judge, Lady Justice Olga Sewe, had expressly considered and factored in the period the applicant spent in remand custody before imposing the 15-year sentence for murder. The record of sentencing proceedings confirmed that the judge acknowledged the applicant had been in custody for approximately eight years and took this into account when determining the sentence. Therefore, the applicant's request for further reduction under Section 333(2) of the Criminal Procedure Code was without merit, as the statutory requirement had already been satisfied at the time of sentencing.
Court Disposition
application dismissed
Orders
- The applicant's petition is dismissed for lack of merit.
- Right of appeal within 14 days.
Full Case Text
Judgment text and source record
21 paragraphs
Kihungwa v Republic (Criminal Petition E037 of 2023) [2025] KEHC 1504 (KLR) (13 February 2025) (Ruling)
Neutral citation: [2025] KEHC 1504 (KLR)
Republic of Kenya
In the High Court at Eldoret
Criminal Petition E037 of 2023
E Ominde, J
February 13, 2025
Between
Andrew Musaina Kihungwa
Applicant
and
Republic
Respondent
Ruling
1. The applicant filed a Petition by way of a Notice of Motion Court stamped as received on 30th May 2023. He seeks that as provided under the provisions of Section 333(2) of the Criminal Procedure Code, the court factors into his sentence the period that he spent in remand.
2. The applicant was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code, Chapter 63 Laws of Kenya. He was convicted and sentenced to serve 15 years’ imprisonment.
3. Counsel for the State while conceding that the provisions of Section 333(2) is mandatory and the Court is obligated to apply it by factoring in the period that an accused spent in custody if at all he was in such custody during the trial, submitted that this provision is not available to the applicant herein for reasons that the relevant period was already factored in by the Hon Lady Justice Olga Sewe in sentencing the applicant.
4. It is correct that the provisions of Section 333(2) are mandatory and so must be applied as correctly stated by Counsel. Given the submission by the Prosecution, I have perused the record of proceedings of sentencing. Lady Justice Sewe in sentencing the applicant to 15 years’ imprisonment was very clear. She considered the fact that the accused was a first offender and had been in custody from the time of his arrest in 2011 and before imposing the sentence of 15 years, she stated thus“Accordingly taking into consideration that the accused has been in custody for 8 or so years, he is hereby sentenced to serve 15 years’ imprisonment…”
5. It is therefore correct as Counsel for the state has submitted that this period was already factored in. The upshot of the above then is that the applicant’s Application is devoid of merit and the same is dismissed.
6. Right of Appeal 14 days
READ DATED AND SIGNED AT ELDORET ON 13TH FEBRUARY 2025E. OMINDEJUDGE