Kasivywa alias Kassim v Republic (Criminal Revision E334 of 2025) [2026] KEHC 10521 (KLR) (15 July 2026) (Revision)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT NAKURU** **CRIMINAL REVISION No. E334 OF 2025** **LUCAS KASIVYWA alias KASSIM ..…………………… APPLLICANT** **-VERSUS-** **REPUBLIC………………………………………...…....… RESPONDENT** **RULING ON REVISION** 1. Pursuant to section 362 of the Criminal Procedure Code the Deputy Registrar of this court placed **Molo CMCC Criminal Case No E1692 of 2022 Republic Vs Lucas Kasivwa** before this court to examine in exercise of its supervisory power of revision. 2. This court has proceeded to peruse and examine the proceedings before the Chief Magistrate’s Court. The record shows that **Lucas Kasivwa alias Kassim,** the applicant herein was tried and convicted on two counts. 3. In **Count I,** he was convicted for the **Offence of assault contrary to section 251 of the Penal Code** and in **Count II** he was convicted for the **Offence of aiding a prisoner to escape contrary to section 124(a) of the Penal Code**. He was sentenced in both Counts to **3 and 4 years imprisonment respectively.** 4. In exercising its supervisory power this court is required to examine the proceedings of the subordinate court and satisfy itself as to correctness legality and propriety of any finding sentence or order recorded or passed and as to the regularity of any proceedings of any such subordinate court. 5. This court has also looked at the sentence review report prepared by the probation officer. In the probation sentence review report, the probation officer has recommended that the custodial sentence should be maintained. 6. It is apparent that in Count I, the applicant faced a charge of assault contrary to section 251 of the Penal Code. The maximum sentence for such an offence is 5 years imprisonment. The application was sentenced to serve two (2) years in prison. The record shows he was a first offender. The accused urged the court to take into account the period served in custody. 7. In county II the applicant was sentenced to serve four (4) years imprisonment. The maximum sentence prescribed under section 124(a) of the Penal Code is seven (7) years imprisonment. Before sentencing the applicant, the trial Magistrate stated that he took into account the fact that the applicant is a first offender. 8. It is also clear that the trial court considered the applicant’s mitigation. The court took into account the seriousness of the offence and the fact that the applicant was a first offender. I am satisfied that the sentences meted out is appropriate in the circumstances of this case. However, there is one issue which appears the trial court did not take into account, the period the applicant spent in custody. The applicant had beseeched the trial Magistrate to factor in that period. 9. This court is enjoined to factor in that period pursuant to section 333(2) of the Criminal Procedure Code. The record shows that the applicant was arrested on the 8th September, 2022 and kept in custody until 16th April, 2024 when he was released upon raising the reviewed bond terms. 10. In short, the applicant was in custody for 7½ months. That period should be factored in and deducted from the sentences imposed. The applicant has been serving his prison term which were ordered to run concurrently from 27th September, 2023. So far, the applicant namely **Lucas Kasivwa alias Kassim** has served 2 years 8 months in prison. If the aforesaid period is added 7½ months then it means the applicant has so far served 3 years 5½ months in prison. Given the fact that the applicant is entitled to remission, then this court can confidently declare that the applicant has served the prison term in full. 11. Consequently, the applicant namely **Lucas Kasivwa alias Kassim should be set free forthwith.** 12. It is so ordered. **Dated, signed and delivered this 15th day of July, 2026 at Nakuru.** **J. K. SERGON** **JUDGE** **In presence of:** Jamleck/Rutoh C/A Miss Anyumba for the State