https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12317
The trial court did not demonstrate that it considered the applicant's 52 days in custody before imposing sentence, yet section 333(2) of the Criminal Procedure Code is mandatory; the sentence therefore had to be adjusted to discount that period.
Source-derived case information.
- Citation
- [2026] KEHC 12317 (KLR)
- Parties
- Applicant: Mohamed Swaleh Salim; Respondent: Office of the Director of Public Prosecutions
- Court
- High Court
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E050 of 2026
- Procedural Posture
- Criminal Revision / Ruling on Application for Sentence Review
- Outcome
- Application allowed.
- Judges
- ["JN Njagi"]
- Legal Topics
- Defilement, Credit for Time Spent in Custody, Section 333(2) Criminal Procedure Code, Sentence Review, Revision Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mohamed Swaleh Salim
Applicant
Office of the Director of Public Prosecutions
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Sentence Review
Legal Issues
- 1 Whether the sentencing court failed to take into account time spent in custody as required by section 333(2) of the Criminal Procedure Code.
- 2 Whether the applicant was entitled to have 52 days spent in custody discounted from the 15-year sentence.
Ratio Decidendi
The trial court did not demonstrate that it considered the applicant's 52 days in custody before imposing sentence, yet section 333(2) of the Criminal Procedure Code is mandatory; the sentence therefore had to be adjusted to discount that period.
Court Disposition
Application allowed.
Orders
- The period of 52 days the applicant spent in custody during trial is to be discounted from the 15-year imprisonment sentence.
- Orders accordingly.
Full Case Text
Judgment text and source record
1 paragraphs
Salim v Office of the Director of Public Prosecutions (Criminal Revision E050 of 2026) [2026] KEHC 12317 (KLR) (28 July 2026) (Ruling) Neutral citation: [2026] KEHC 12317 (KLR) Republic of Kenya In the High Court at Garsen Criminal Revision E050 of 2026 JN Njagi, J July 28, 2026 Between Mohamed Swaleh Salim Applicant and Office of the Director of Public Prosecutions Respondent Ruling 1.The Applicant has filled an undated application seeking for review of the sentence of 15 years imprisonment imposed on him for the offence of defilement contrary to Section 8 (1) (2) of the Sexual Offences Act 2006 on the ground that the trial court did not credit him with the time spent in custody when sentencing him contrary to the provisions of Section 333(2) of the Criminal Procedure Code. He now seeks that he be credited with time spent in custody from the date of arrest to the date of sentence. 2.I have perused the record of the trial court in Lamu Criminal Case No.E007 of 2021. The record indicates that the applicant was arrested on 18/8/2021 and was released on bond on 5th October 2021. He was thereby in custody for a period of 48 days before he was released on bond. The record shows that judgment was delivered on 7/1/2022 when he was found guilty and remanded pending sentence. He was sentenced on 11/1/2022. He was therefore in custody for 4 more days before he was sentence. That makes the total time spent in custody as 52 days. 3.Section 333 (2) of the Criminal Procedure Code requires a court sentencing an accused person who has been in custody to take into account the period spent in custody. The judgment of the trial court does not indicate whether the court considered the time spent in custody when it sentenced the applicant to 15 years imprisonment. It is to be noted that the provisions of Section 333(2) of the Criminal Procedure Code are couched in mandatory terms. The trial court therefore erred in not taking into account the time spent in custody when sentencing the applicant. I find the application to be merited. 4.In view of the foregoing I order that the period of 52 days that the applicant spent in custody during the trial be discounted from his imprisonment of 15 years.Orders accordingly. RULING DELIVERED, DATED AND SIGNED AT GARSEN THIS 28TH JULY 2026.J.N.NJAGIJUDGEIn the presence of:Ms. Mkongo for RespondentApplicant - present virtuallyCourt Assistant - Jumaa