https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7369

Malemba & another v Republic (Miscellaneous Criminal Application E106 of 2025) [2026] KEHC 7369 (KLR) (28 May 2026) (Ruling) Neutral citation: [2026] KEHC 7369 (KLR) Republic of Kenya In the High Court at Bungoma Miscellaneous Criminal Application E106 of 2025 REA Ougo, J May 28, 2026 Between Ramadhan Musa Malemba 1st Applicant Fernandes Juma Malaba 2nd Applicant and Republic Respondent Ruling 1.The Application before the Court is a Notice of Motion dated 6th August 2025, filed by the Applicants and supported by their sworn affidavits, in which the Applicant seeks revision of his sentence. 2.The 1st Applicant was charged in HCCRC No. 2 of 2009 at Bungoma with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code, while the 2nd Applicant was charged with the same offence in Bungoma HCCRC No. 14 of 2010. The files were consolidated on 30th September 2010 before Hon. Onyancha J. and heard together. The Applicants were convicted of the said offences and sentenced to life imprisonment in the first instance. However, both sentences were later commuted to thirty (30) years’ imprisonment by this Court in its Ruling dated 21st June 2024. 3.The Applicants have now approached this Court seeking a revision of their sentences in accordance with Section 333(2) of the Criminal Procedure Code and paragraph 5.1.21 of The Sentencing Policy Guidelines Revised in 2023, on the ground that the period they were in custody before being granted bond, from the date of arrest, being 2nd January 2009, be taken into account when re-sentencing. 4.The Applicants averred in their affidavits in support of the Application that they first entered a plea before Hon. Mutemi J. on 16th January 2009, following their arrest on 2nd January 2009 at Kimilili Police Station. They also stated that they were granted bond terms by Hon. Muchelule J. and that on 19th June 2024, the SSP-Officer in Charge sought guidance from the Court through a letter, asking when sentence computation was to begin. It is their case that this Court made a typographical error in its Ruling of 14th August 2024 by indicating 24th October 2010 as the date on which the sentences were to start running. 5.The Applicants have filed written submissions, which I have read and considered. Learned Prosecution Counsel stated in Court on 18th February 2026 that the court record indicated that the period spent in pre-trial custody was treated as time served for the purpose of commuting their sentence. 6.Having set out the above, the main issue for my determination is whether the Application is merited and the prayers sought ought to be allowed. Analysis And Determination 7.Article 50 of the Constitution provides for the rights of an accused person as follows: -(2)Every accused person has the right to a fair trial, which includes the right—(q)if convicted, to appeal to, or apply for review by, a higher court as prescribed by law. 8.The revisionary powers of this Court are premised under Article 165 of the Constitution and Sections 362-364 of the Criminal Procedure Code. Article 165 states: -(6)The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court. 9.Sections 362 and 364 of the Criminal Procedure Code, which grant the Court the supervisory role of calling for and examining the records of any criminal proceedings before subordinate courts 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, provide as follows:362.Power of High Court to call for recordsThe 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.364.Powers of the High Court on Revision1.In the case of a proceeding in a subordinate court, the record of which has been called for or which has been reported for order, or which otherwise comes to its knowledge, the High Court may –(a)in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358, and may enhance the sentence;(b)In the case of any other order other than an order of acquittal, alter or reverse the order.(2)No order under this section shall be made to the prejudice of an accused person unless he had had an opportunity of being heard either personally or by an advocate in his own defense:Provided that this subsection shall not apply to an order made where a subordinate court has failed to pass a sentence which it was required to pass under the written law creating the offence concerned. 10.From the above, it is evident that this Court cannot exercise revisionary powers over itself or any other court of concurrent jurisdiction. At the same time, since the Applicants have already exercised their rights under Article 50 of the Constitution and have had their sentences commuted from a death sentence to a thirty-year imprisonment sentence, I find that this Court became functus officio in the present case the moment it rendered its Ruling on 14th August 2024. 11.I have considered the provisions of Section 333 (2) of the Criminal Procedure Code, which the Applicants rely on as the basis of their Application. It states as follows: -(2)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. 12.In Ahamad Abolfathi Mohammed & Another vs. Republic [2018] eKLR, the Court of Appeal held thus: -“The second is the failure by the court to take into account in a meaningful way, the period that the appellants had spent in custody as required by section 333(2) of the Criminal Procedure Code. By dint of section 333(2) of the Criminal Procedure Code, the court was obliged to take into account the period that they had spent in custody before they were sentenced. Although the learned judge stated that he had taken into account the period the appellants had been in custody, he ordered that their sentence shall take effect from the date of their conviction by the trial court. With respect, there is no evidence that the court took into account the period already spent by the appellants in custody. “Taking into account” the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody. It is not enough for the court to merely state that it has taken into account the period already spent in custody and still order the sentence to run from the date of the conviction because that amounts to ignoring altogether the period already spent in custody. It must be remembered that the proviso to section 333(2) of the Criminal Procedure Code was introduced in 2007 to give the court power to include the period already spent in custody in the sentence that it metes out to the accused person. We find that the first appellate court misdirected itself in that respect and should have directed the appellants’ sentence of imprisonment to run from the date of their arrest on 19th June 2012.” 13.It is clear from the court record that the period spent in pre-trial custody was taken into account. Even if the period spent by the Appellant in pre-trial custody was not considered at the time of commuting the sentence, this Court cannot, under its revisionary powers, revisit the same issue to reconsider the sentence or the period from which the sentences are to be computed, as it lacks jurisdiction in that regard. 14.I therefore dismiss the present Application for want of jurisdiction and direct that the Applicants continue to serve the remainder of their sentences in custody. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 28TH DAY OF MAY 2026.R.E. OUGOJUDGEIn the presence of :Ramadhan Musa Malemba & Fernandes Juma Malaba/1st & 2nd ApplicantsRespondent – AbsentWilkister -C/A