https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11710

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT CHUKA** **MISC. CRIMINAL APPLICATION NO. E026 OF 2025** **MOSES KINYUA NKONDI..............………….APPLICANT** **VERSUS** **REPUBLIC ……………………………………. RESPONDENT** **RULING** 1. Moses Kinyua Nkondi (Applicant) was charged with robbery with violence in Chuka Chief Magistrate’s Court Criminal Case No. E009/2020. The particulars were that on 4th October 2020 at Maara River, Kiera Sub-Location Matuguni Location Maara Sub-County while armed with a dangerous weapon namely a panga did rob Lewa Kathomi 10 kilogrames of sorghum and Kshs.8000/- and immediately before the time of such robbery did use actual violence by cutting the said Lewa on her left ear. 2. The appellant was also charged with rape contrary to Section 3(1)(a)(b) (3) of the Sexual Offences Act No. 3 of 2006. 3. At the close of the trial, the Applicant was acquitted for the offence of robbery with violence and convicted of the offence of rape. He was sentenced to serve 10 years’ imprisonment. 4. The Applicant filed an appeal against conviction and sentence vide HCCRA No. E010 of 2023. In a judgement dated 15th July 2024 Gitari J. dismissed the appeal. 5. The Applicant subsequently filed the present Application dated 15th March 2025 seeking that the period he spent in pre-trial custody be included in his 10-year prison sentence. 1. At the hearing of the Application on 23rd April 2026 the Applicant made oral submissions asking the court to reduce the sentence by the period he spent in pre-trial custody. He also urged for a non-custodial sentence for the balance of his sentence stating that his wife was unwell and needed his care. 2. The Application is opposed by the Respondent through submissions dated 20th April 2026. The Respondent urged that the issue of sentence ought to have been raised on appeal and that re-computation of sentence was not automatic. 3. I have considered the Application. Though styled a Petition, the Applicant’s Application did not qualify to be a Petition as there were no constitutional issues raised. All that the Applicant sought was a reduction of his sentence to take into consideration the provisions of section 333(2) of the Criminal Procedure Code. 4. The Applicant’s appeal was dismissed by the high court. He cannot come back to the same court to relook the sentence. He ought to move higher up to the court of appeal. 5. For the benefit of the Applicant however, I have perused the trial file and noted the following. The Applicant was arrested on 7th October 2020 and presented for plea on 8th October 2020. Upon plea, he was granted a Kshs.300,000 bond. The surety was approved on 16th October 2020 meaning that he was released. 6. It is not therefore accurate for the Applicant to claim that he was in pre-trial custody. He was out on bond until the date he was convicted and sentenced. 7. The Application has no merit and is dismissed. Orders accordingly. **Ruling delivered, dated and signed at Chuka this 27th day of July, 2026.** **..........................** **R. LAGAT-KORIR** **JUDGE** **Ruling delivered in the presence of the Applicant acting in person and Ms Rukunga for the Republic; Muriuki (Court Assistant).**