https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11277

Apatet v Republic (Criminal Revision E042 of 2026) [2026] KEHC 11277 (KLR) (23 July 2026) (Ruling) Neutral citation: [2026] KEHC 11277 (KLR) Republic of Kenya In the High Court at Marsabit Criminal Revision E042 of 2026 FR Olel, J July 23, 2026 Between Lotuba Elongot Apatet Applicant and Republic Respondent Ruling A. Introduction 1.The petitioner was charged with the offence of attempted defilement contrary to Section 9(1),(2) of the Sexual offence Act, No 3 of 2026 in MARSABIT SPMCR (SO) CASE NO E002 OF 2024 and after trial was convicted and sentenced to serve for a period of five (5) years. The applicant subsequently filed an appeal against his conviction and sentence, being MARSABIT HCCR APPEAL NO E008 OF 2025, which appeal was heard on merit and dismissed on 18th November 2025. 2.The applicant has filed this revision application on 14th July 2026 seeking review of the said sentence on grounds that the period spent in remand between reduced off his sentence as provided for under Section 333(2) of the criminal procedure code. 3.The respondent, through Prosecution counsel did not object to this Application and left it to the court’s discretion. B. Analysis of Law 4.I have considered the application as well as the response by the Prosecution counsel. The powers of the High court in revision are contained in Section 362 through to 366 of the Criminal Procedure Code (cap.75). Section 362 specifically provides as follows: -“The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court”. 5.Justice Odunga in the case of Joseph Nduvi Mbuvi V Republic [2019 e KLR sets out the powers of the High court as follows: -“ 5.In my view, the revisionary jurisdiction of the High Court should only be invoked where there are glaring acts or omissions but should not be a substitute for an appeal. In other words, parties should not argue an appeal under the guise of a revision. It is for this reason that the decision whether or not to hear the parties or their advocates is discretionary save for where the orders intended to be made will prejudice the accused person. As was stated by the High Court of Malaysia in Public Prosecutor Vs Muhari Bin Mohd Jani And Another [1996] 4 LRC 728 at 734, 735:-“The powers of the High Court in revision are amply provided under section 325 of the Criminal Procedure Code subject only to subsections (ii) and (iii) thereof. The object of revisionary powers of the High Court is to confer upon the High Court a kind of “paternal or supervisory jurisdiction” in order to correct or prevent a miscarriage of justice. In a revision the main question to be considered is whether substantial justice has been done or will be done and whether any order made by the lower court should be interfered with in the interest of justice…If we have been entrusted with the responsibility of a wide discretion, we should be the last to attempt to fetter that discretion…This discretion, like all other judicial discretions ought, as far as practicable, to be left untrammeled and free, so as to be fairly exercised according to the exigencies of each case”. 6.It is therefore clear that those powers are limited to what the statute and the constitution of Kenya under Article 165(6) and (7) provides. What this court is called upon to determine is the legality, correctness or propriety of the sentence given by the court on the applicant’s application or petition for resentencing. In order to exercise that power, the court must be satisfied that the trial court acted upon wrong principles or failed to consider some fundamental principles. 7.Section 333 of the Criminal Procedure Code provides:1.A warrant under the hand of the judge or magistrate by whom a person is sentenced to imprisonment, ordering that the sentence shall be carried out in any prison within Kenya, shall be issued by the sentencing judge or magistrate, and shall be full authority to the officer in charge of the prison and to all other persons for carrying into effect the sentence described in the warrant, not being a sentence of death.2.Subject to the provisions of section 38 of the Penal Code 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. 8.The Judiciary Sentencing Policy Guidelines (2014) also provides guidance on this as follows:“The proviso to section 333 (2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody if the convicted person had been in custody during the trial. Failure to do so impacts on the overall period of detention which may result in an excessive punishment that is not proportional to the offence committed. In determining the period of imprisonment that should be served by an offender, the court must take into account the period in which the offender was held in custody during the trial.” 9.The applicant was arrested on 23.06.2024 and sentenced on 14.10.2024 and was not give him the benefit of reducing the period served in remand to be considered as part of the said sentence. By virtue of provisions of Article 27(1) of the constitution of Kenya 2010 he has legitimate expectation to be treated equally before law and have equal protection and benefit of the law. 10.I find that this is an application where the courts discretion can be exercised in favour of the applicant. I find this application is merited and hereby invoke provision of section 333{2} of the criminal procedure code and order that the four months the applicant spent in remand from 23.06.2024 to 14.10.2004, when he was sentenced be reduced off his sentence 11.It is hereby so ordered. DATED, DELIVERED AND SIGNED AT MARSABIT THIS 23rd DAY OF JULY, 2026.FRANCIS RAYOLA OLELJUDGEDelivered on the virtual platform, Teams this 23rd day of July 2026.In the presence of;…………………………………….Appellant…………………………………. For O.D.P.P…………………………………. Court Assistant