https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10835

Korir v Republic (Criminal Miscellaneous Application E020 of 2025) [2026] KEHC 10835 (KLR) (20 July 2026) (Ruling) Neutral citation: [2026] KEHC 10835 (KLR) Republic of Kenya In the High Court at Eldoret Criminal Miscellaneous Application E020 of 2025 RN Nyakundi, J July 20, 2026 IN THE MATTER OF VIOLATION OF CONSTITUTIONAL RIGHTS AND FUNDAMENTAL FREEDOMS UNDER ARTICLE 50 (2)(P), 25(1) OF COK AND SECTION 333 (2) OF THE CPC AND SENTENCING POLICY GUIDELINES 2023. Between Paul Kimutai Korir Petitioner and Republic Respondent Ruling Background: 1.The Petitioner was principally 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. The particulars were that on the 23rd day of December 2016 at Chemusian farm in Eldoret East District, within-Uasin-Gishu County, the accused unlawfully and intentionally caused his genital organ (penis) to penetrate the genital organ (vagina) of Scola Chelagat, a girl aged 12 years. In the alternative, the accused was charged with the offence of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act. The particulars were that on the 23rd day of December 2016 at Chemusian Farm in Eldoret East District within Uasin Gishu County, the accused intentionally and unlawfully touched the private part (vagina) of SC a girl aged 12 years. 2.The learned magistrate considered the evidence in a full trial and arrived at the following decision:Having said the above, it is my conclusion that the prosecution has proved its case beyond any reasonable doubt. I find the accused guilty of the principal charge and hereby proceed to convict him accordingly under Section 215 of the CPC Cap 75 of the laws of Kenya. 3.The learned trial magistrate went further and sentenced the petitioner to 20 years imprisonment. This petitioner aggrieved with both conviction and sentence file an appeal being No. E010 of 2022 which the session judge heard and determine dismissing the appeal in its entirety. 4.The application before court is in the application of Section 333(2) of the CPC as premised in the Notice of Motion dated 23rd day of January 2025 in which the Petitioner seeks the following orders:a.That, the petitioner is seeking for declaratory orders that his right to a fair trial were violated under article 50 (2)(p) of the COK by not complying with section 333 (2) of the criminal procedure code.b.That, the petitioner is seeking for orders for his sentence to be reduced by a period proportionate to the period spent in pre-trial custody or in the discretion of the court order sentence to commence from my date of arrest on 24th December-2016.c.That, the petitioner is seeking for orders that his right to a fair trial were violated when principles of sentencing were never applied in his case c/sec 25 (1) of the COK.d.That, the petitioner is seeking for orders to review his sentence based the new judiciary policy on periodic prison decongestion under community service order act section 3(1) of CSO Acte.That, the petitioner is praying to be present during the determination of this petition. 5.In support of the application is the supporting affidavit of Paul Kimutai Korir who deponed as follows:a.That, I am a Kenyan citizen who is an adult male of sound mind hence competent to swear this affidavit.b.That, I was charged with the offence of DEFILEMENT c/sec 8 (1) ARW sec 8 (3) of the S.O.A no.3of 2006, I was convicted and sentenced to serve 20 years, the sentence was imposed at CM's court Eldoret by Hon. BARASA that was delivered on 16TH-August-20193.-THAT I was aggrieved with the above decision and filed for an appeal no. E010 of 2023 on the above decision at Eldoret High Court which was dismissed by Hon. Justice Muhochi .J.c.That, the petitioner is seeking for relief on violation of his right to a fair trial/hearing on grounds:-a.That, the trial magistrate during the sentencing hearing in the petitioner's case did not order the period he spent in pre-trial custody be reduced from his 20 years sentence imposed on him. This omission denied me the benefit of a least severe sentence violating my right under article 50 (2)(p) of C.O.K by not complying with its obligatory duty under section 333 (2) of the CPC.b.That, while the court rightly imposed a mandatory sentence according to the recent ruling by supreme court, the sentencing court did not apply any principle on sentencing such as mitigation, proportionality and fairness which violated the right to a fair trial under article 25 of the COK. The consideration for instance the principle of mitigation had the potential to earn him one third reduction on his sentence according to the judiciary sentencing policy guideline 2023.c.That, the petitioner now that he has served a better part of his sentence and the changed circumstances in his case the court has the discretion to alter his sentence on review under article 50(2) (q) of COK. The court has a new policy on decongesting prison through community service order which may be suitable in meeting sentencing objective of restorative justice, reconciliation, reintegration. I am now a qualified carpenter who would be glad to be placed in the community(school) and make school desks or any furniture for free a period of three (3) years.d.That, am seeking for any orders that would offer me relief for violation of my right to a fair trial Decision 6.This application is based in the provisions of Section 333(2) which provides as follows:Subject to the provisions of section 38 of the Penal Code (Cap 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code. 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. 7.It is imperative to mention under Article 2(5)(6) of the constitution, International Law forms part of sources of Kenya Law to be applied in jurisprudential decision making. Therefore, International and Regional Instruments generally establish that pretrial detention must be a measure of last resort, used only when necessary and that any time spent in detention prior to conviction must be credited towards the final sentence. This is rooted in the presumption of innocence in line with Article 50(2)(a) of the constitution. 8.It cannot be denied as of early 2026, the total prison population in Kenya is approximately 60,740, with a significant proportion consisting of remandees (pre-trial detainees). Therefore, the justice sector cannot overlook the aspect of excessive and arbitrary pretrial detention as a form of human right abuse which affects thousands of remandees as the above statistics demonstrate and as a consequence it undermines the rule of law. it is also a fact that person who have been arraigned before court as suspects to a crime are presumed innocent until the contrary is proved by the State through the office of the Director of Public Prosecution. It is not about just their right to liberty but pretrial detainees may lose their jobs if they were in gainful employment, their families both spouses and children suffer immensely in terms of securing their survival rights due to the long incarceration of their bread winners where the household depends on the male spouse to make provision financially for the basic rights. The negative impact to pretrial detention also sets in the physical, psychological, emotional and including some elements due to the conditions availed during their detention. 9.This is what the former Special Rapporteur on Torture Sir Nigel Rodley A/56/156, para 35 was referring to when he was making this statement.There needs to be a radical transformation of assumptions in international society about the nature of deprivation of liberty. The basic paradigm, taken for granted over at least a century, is that prisons, police stations and the like are closed and secret places, with activities inside hidden from public view. The international standards referred to are conceived of as often unwelcome exceptions to the general norm of opacity, merely the occasional ray of light piercing the pervasive darkness. What is needed is to replace the paradigm of opacity by one of transparency. The assumption should be one of open access to all places of deprivation of liberty. Of course, there will have to be regulations to safeguard the security of the institution and individuals within it, and measures to safeguard their privacy and dignity. But those regulations and measures will be the exception, having to be justified as such; the rule will be openness. 10.In the arena of International Law, the key instruments on this canon on pretrial detention include the ICCPR (Articles 9 & 14) which protects against arbitrarily detention and guarantees a fair trial, the 1988 body of principles, which demands judicial oversight and credit for time served, and the Tokyo Rules (1990) which promote using alternatives to detention as a last resort. Whereas the regional framework is clearly crystallizing in Europe with ECHR which prohibits excessive detention while in the American system the ACHR, emphasizes proportionality and necessity, prohibiting mandatory detention. The continent of Africa has also not been left behind as the African Commission’s Luanda guidelines set strictly standards for limiting pretrial detention. In so far as the ICTY/ICTR Rule 101(C) is concerned it require that all time spent in custody prior to conviction and sentencing is credited against the final sentence. See also OHCHR Human Rights and Pretrial detention: A Handbook of International Standards, UNODC: Detention Prior to Adjudication and IACHR: Practical Guide on Measures to Reduce Pretrial Detention. 11.In addition to the above instruments the following provisions are also on point with regard to pretrial detention against an accused person who has been charged before a court of law but not yet released on bail as required under Article 49 (1)(H) of the constitution. Thus, the Standard Minimum Rules for Non-Custodial Measures (Tokyo Rules) state that pre-trial detention “shall be” used as a means of “last resort in criminal proceedings” (6.1); that where the protection of society, prevention of crime, respect for law and rights of victims are not compromised, the police or prosecution “should be empowered to discharge the offender”. The Standard Minimum Rules for the Treatment of Prisoners (Rules 84-93) dedicate a section to prisoners under arrest or awaiting trial. These provisions act as guidelines for the prison authorities governing the conditions of detention of pre-trial prisoners, the privileges to which they are entitled and access to legal advice and assistance. In the case of young persons in conflict with the law, the Convention on the Rights of the Child states that the detention or imprisonment of a child shall be used “only as a measure of last resort and for the shortest period of time” (CRC 37(b)). 12.The decision to govern the granting of credit for pretrial ccustoduy under the CPC is within the constitution imperative of our Bill of Rights to account for the harsh conditions of remand centers and parole ineligibility though this can be capped or denied in certain situations. The main question in this petition is whether Parliament can require Judges and Magistrates to punish individual without taking into account their moral blameworthiness and degree of responsibility for a crime. This provisions under Section 333(2) of the CPC is to ensure that individuals are not punished because of their inability to obtain bail during the pendency of their case being heard and determined. There is also doctrine of proportionality in sentencing. Therefore, the principle of proportionality prevents Parliament from making sentencing contingent on factors unrelated to the determination of a fit sentence. In this sense, the principle of proportionality is closely associated with the established principle that a law that violates life, liberty or security of the person cannot be arbitrary. The principle of proportionality in sentencing is therefore distinct from the principle that the means used to achieve a legislative goal must be proportionate to the effects. Both are principles of fundamental justice and both can come into play in the same circumstances, including this case. 13.There is concern that the current practice of awarding generous credit for pre-sentence custody may be encouraging some of those accused abuse the court process by deliberately choosing to stay in remand in the hope of getting a shorter term of imprisonment once they have been awarded credit for time served. The person who is charged who wants his or her day in court, who wants to be fairly treated by the system, and who wants to have a reasonable system will no longer have any incentive for a delay in the disposition. 14.The principle in proportionality meets the test set out in Section 333(2) of the CPC on pretrial detention period being credited to the overall period on sentence imposed by a trial court and in this regard this principle on granting the credit period is a principle of fundamental justice in the Criminal justice. In law how do I see as the test for determining the what constitute a principle of fundamental justice like the one provided for by parliament under Section 333(2) of the CPC. First, the principle must be a legal principle. Second their must be consensus, that the principle is consensus, that principle is essential to our shared notion of justice. Third the principle must be capable of being identified with precision and applied in manner yields predictable results. 15.Therefore, in order to impose a fair and individualize punishment two basic steps need to be followed and must be borne in mind when considering the application of Section 333(2) of the CPC: First, society must generally decide how severely to punish a type of wrongdoing. In other words, punishment must be anchored to the seriousness of a type of crime. A “mandatory minimum” sentence, for example, is Parliament’s expression of what is a fair punishment for a type of crime. Starting points and ranges are also expressions of fair punishments for categories of crime. Through these mechanisms, it is decided generally what type of a punishment or result fits a type of crime. Second, just punishment must be individualized to ensure that people are punished relative to others. Justice demands that those who are more blameworthy receive a harsher sanction. On the other hand, if the moral blameworthiness and the degree of responsibility of two individuals are identical, their punishment should be roughly identical. In order to individualize punishment in this manner, a sentencing judge must follow a process through which he or she identifies the particular blameworthiness and degree of responsibility of the individual(s) being sentenced. (See R v Johnson, 2011 ONCJ 77 at paras 138-139 [RBA Tab 16]. 16.In the present case it makes sense that the Petitioner be granted credit in terms of Section 333(2) of the CPC with effect from 25th December 2016. As a consequence of this the comital warrant shall be amended to incorporate the period spent in pre-detention custody. It is so ordered. DATED, SIGNED AND DELIVERED THIS 20TH DAY OF JULY 2026.…………………………..………R. NYAKUNDIJUDGE