[2025] KEHC 10498 (KLR)
The court found that, in light of the Court of Appeal decisions delivered after the petitioner.s previous appeals, it was only fair and in accordance with Article 27(1) of the Constitution to apply the new jurisprudence equating life imprisonment to a determinate term. The court therefore allowed the petition for...
Source-derived case information.
- Citation
- [2025] KEHC 10498 (KLR)
- Parties
- Appellant: Fredrick Kibienda Kisiswa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Vihiga
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition E008 of 2023
- Procedural Posture
- Criminal Petition / Ruling on Resentencing and Computation of Sentence
- Outcome
- Petition for resentencing allowed; petitioner re-sentenced to thirty years imprisonment with credit for time in custody between 9th March 2012 and 31st May 2012.
- Judges
- JN Kamau
- Legal Topics
- Defilement, Sexual Offences Act, Resentencing, Life Imprisonment, Section 333 2 Criminal Procedure Code
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fredrick Kibienda Kisiswa
Appellant
Republic
Respondent
Procedural Posture
Criminal Petition / Ruling on Resentencing and Computation of Sentence
Legal Issues
- 1 Whether the petitioner is entitled to resentencing in light of recent Court of Appeal decisions equating life imprisonment to a determinate term.
- 2 Whether the period spent in remand custody should be considered in computing the petitioner.s sentence under Section 333(2) of the Criminal Procedure Code.
Ratio Decidendi
The court found that, in light of the Court of Appeal decisions delivered after the petitioner.s previous appeals, it was only fair and in accordance with Article 27(1) of the Constitution to apply the new jurisprudence equating life imprisonment to a determinate term. The court therefore allowed the petition for resentencing and imposed a sentence of thirty years. Further, applying Section 333(2) of the Criminal Procedure Code, the court held that the period between 9th March 2012 and 31st May 2012, during which the petitioner was in custody, should be taken into account in computing the sentence, as this was the only period reliably evidenced by the record. The absence of full...
Court Disposition
Petition for resentencing allowed; petitioner re-sentenced to thirty years imprisonment with credit for time in custody between 9th March 2012 and 31st May 2012.
Orders
- The petitioner is re-sentenced to thirty (30) years imprisonment.
- The period between 9th March 2012 and 31st May 2012 spent in custody shall be taken into account in computing the sentence.
Full Case Text
Judgment text and source record
24 paragraphs
Kisiswa v Republic (Criminal Petition E008 of 2023) [2025] KEHC 10498 (KLR) (16 July 2025) (Ruling)
Neutral citation: [2025] KEHC 10498 (KLR)
Republic of Kenya
In the High Court at Vihiga
Criminal Petition E008 of 2023
JN Kamau, J
July 16, 2025
Between
Fredrick Kibienda Kisiswa
Petitioner
and
Republic
Respondent
Ruling
1. The Applicant herein was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No 3 of 2006. He was also charged with an alternative charge of the offence of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. He was convicted of the main charge and sentenced to life imprisonment.
2. In its decision of 28th November 2024, this court directed the DR High Court Vihiga to liaise with the Trial Court to obtain the missing proceedings to enable this court consider the Petitioner’s prayer under Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya). It also directed that this matter would be mentioned on 29th April 2025 to confirm compliance and/or for further orders and/or directions. As at 15th July 2025, when the matter was last mentioned, the missing proceedings had not been availed as they could not be traced.
3. This court noted that the Trial Court sentenced the Petitioner to life imprisonment. This court was able to retrieve a decision by Musyoka J that he delivered on 12th November 2021 in Kakamega Criminal Petition No 19 of 2020 to wit Fredrick Kibeinda vs Republic [2021]eKLR. In the said matter, the Learned Judge struck out the Petitioner’s Petition as his sentence of life imprisonment had been upheld in Kakamega HCCRA No 14B of 2014.
4. Based on the basis of the reasoning of the Court of Appeal decisions of Manyesovs Republic (Criminal Appeal 12 of 2021) [2023] KECA 827 (KLR) (7 July 2023) (Judgment) and Ayako vs Republic [2023] KECA 1563 [KLR] which equated life imprisonment to a determinate sentence of thirty (30) and forty (40) years respectively, this court allowed the Petitioner’s Petition for re-sentencing and re-sentenced him to thirty (30) years.
5. This court took the view that as the two (2) Court of Appeal decisions were delivered way after the decisions of Criminal Petition No 19 of 2020 to wit Fredrick Kibeinda vs Republic [2021]eKLR and Kakamega HCCRA No 14B of 2014, it was only fair that the Petitioner herein enjoyed the equal benefit of the law as was envisioned by Article 27(1) of the Constitution of Kenya, 2010.
6. Although the missing proceedings were not availed to this court, it found it prudent to proceed with the proceedings that were in the file as it could not keep this matter in abeyance indefinitely. As the Petitioner’s sentence of life imprisonment that was meted out to him by the Trial Court was subsequently upheld during trial, the period he had spent in remand could not be taken into account as he was serving an indeterminate sentence. However, as the Petitioner was now serving a determinate sentence, this court could now consider the said period.
7. Notably, the Petitioner was arrested on 9th March 2012. He was convicted on 31st December 2013. However, there are no records to show when he was sentenced. There even no warrants of conviction. He could not also remember when he was sentenced stating that it was many years ago. The court could not also trace Kakamega HCCRA No 14B of 2014 in the Kenya Law Report website. As the last proceedings in the file showed that he was in custody as at 31st May 2012, this court determined that this was the only period that it could grant him because it was certain that he was in custody during this period. It was difficult to ascertain if he ever left prison and when he was sentenced.
Disposition 8. For the foregoing reasons, the upshot of this court’s decision was that the period between 9th March 2012 and 31st May 2012 when the Petitioner remained in custody while his trial was going to be taken into account while computing his sentence in line with Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya).
9. It is so ordered.
DATED AND DELIVERED AT VIHIGA THIS 16TH DAY OF JULY 2025J. KAMAUJUDGE