[2025] KEHC 9384 (KLR)
The court found that the applicant's contention was correct: the sentencing court did not comply with section 333(2) of the Criminal Procedure Code, which requires that the period spent in custody prior to sentencing be considered when computing the term of imprisonment. Upon review of the court record, the judge...
Source-derived case information.
- Citation
- [2025] KEHC 9384 (KLR)
- Parties
- Applicant: Brian Mutuku Kyalo; Respondent: Office of the Public Prosecution
- Court
- High Court
- Court Station
- High Court at Makueni
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application E027 of 2024
- Procedural Posture
- Criminal Miscellaneous Application / Ruling on Sentence Review
- Outcome
- application allowed; sentence revised to account for pre-sentence custody
- Judges
- TM Matheka
- Legal Topics
- Sentencing Review, Stock Theft, Pre Sentence Custody, Concurrent Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Brian Mutuku Kyalo
Applicant
Office of the Public Prosecution
Respondent
Procedural Posture
Criminal Miscellaneous Application / Ruling on Sentence Review
Legal Issues
- 1 Whether the sentencing court complied with section 333(2) of the Criminal Procedure Code regarding consideration of pre-sentence custody period.
- 2 Whether the applicant is entitled to a revision of sentence to account for time spent in custody.
Ratio Decidendi
The court found that the applicant's contention was correct: the sentencing court did not comply with section 333(2) of the Criminal Procedure Code, which requires that the period spent in custody prior to sentencing be considered when computing the term of imprisonment. Upon review of the court record, the judge determined that the applicant had been in custody since 29/8/2023 and that the sentence imposed on 13/5/2024 did not expressly account for this period. The court therefore revised the sentence to run from the date of arrest, ensuring compliance with the statutory requirement and upholding the applicant's right to have pre-sentence custody considered in the computation of his...
Court Disposition
application allowed; sentence revised to account for pre-sentence custody
Orders
- The sentence is revised: the applicant is to serve two years custodial sentence in count 1 and 2 with effect from 29/8/2023.
- Order to be served upon the Officer In Charge Makueni GK Prison for compliance.
Full Case Text
Judgment text and source record
21 paragraphs
Kyalo v Office of the Public Prosecution (Criminal Miscellaneous Application E027 of 2024) [2025] KEHC 9384 (KLR) (12 May 2025) (Ruling)
Neutral citation: [2025] KEHC 9384 (KLR)
Republic of Kenya
In the High Court at Makueni
Criminal Miscellaneous Application E027 of 2024
TM Matheka, J
May 12, 2025
Between
Brian Mutuku Kyalo
Applicant
and
Office of the Public Prosecution
Respondent
Ruling
1. The applicant was charged with stock theft contrary to section 278 of the Penal Code. Particulars are that on the 25th day of August, 2023 at Kilome sub-location, in Mukaa subcounty within Makueni County, stole two goats valued at Kshs. 13,000 the property of Jacinta Katiwa. On Count II he was charged with stock theft contrary to Section 278 of the Penal Code. Particulars are that on the night of 28th August, 2023 at Kavila Village in Kilome sub-location, Mukaa subcounty within Makueni County, jointly with others not before court stole two cows valued at Kshs. 87,000 the property of Magdalena Wayua John.
2. He was arrested on 29/8/2023.
3. After a full trial, he was found guilty and convicted on both main counts vide judgment of 13/5/2024.
4. The court noted that accused had similar offence in Kilungu MCCRC E483/2022.
5. On 13th May 2024 he was sentenced to serve 2 years imprisonment on each count. The Sentences were to run concurrently.
6. It is the applicant’s contention in the application before me that in sentencing by the court did not comply with section 333(2) of the Criminal Procedure Code which states:“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.1. I have checked the court record and I have found that the applicant’s contention is correct.2. In the circumstances I find that the application for review is in tandem with Section 333(2) of the CPC. I find it has merits and allow it as prayed.3. The sentence meted to the applicant is revised as follows;Accused is sentenced to serve two years custodial sentence in count 1 & 2 with effect from 29/8/2023. "Orders accordingly.Order be served upon the Officer In Charge Makueni GK Prison for compliance. File closed.
DATED, SIGNED AND DELIVERED VIA CTS ON 12TH MAY 2025. MUMBUA T MATHEKAJUDGECA ChrispolSIGNED BY: LADY JUSTICE MATHEKA, TERESIA MUMBUATHE JUDICIARY OF KENYA.MAKUENI HIGH COURTHIGH COURT DIVDATE: 2025-05-12 17:32:31The Judiciary of Kenya