https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8220

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT NYERI** **CRIMINAL REVISION NO. E094 OF 2025** **PAUL KAMAU MAIGWA ………………………….………...…….APPLICANT** **VERSUS** **REPUBLIC …………………………………...………...……… RESPONDENT** **RULING** 1. The applicant seeks to move under section 333(2) of CPC. He indicated that he was charged under Section 278 and imprisoned for 3 years on 7/6/2023. It is indicated that in count 2, he was charged on 24.02.2023 with breaking into a building. He was convicted on 13/7/2023 and imprisoned to 5 years. He was charged in the final count for robbery under Section 296(1) and sentenced to 10 years. 2. He sought to bring mitigation and relied on Section 216 and 333(2) of the Criminal Procedure Code. However I noted that he was not charged with three counts as he alleged. He was charged in Nyeri Criminal Case Number E246 of 2023 for stealing stock. The particulars were that on the 22nd February 2023 at unknown time in Gitunju village in Kieni west sub-county within Nyeri County, the applicant together with two others before the court, jointly stole three sheep valued at Kshs. 22,000/= the property of Joseph Riitho Muiko. 3. The alternative count was that of handling stolen goods contrary to Section 322(1)(2) of the Penal Code. The particulars were that on the 24th February 2023 at Embaringo area within Kieni west sub-county within Nyeri County, the applicant was found in possession of three sheep valued at Kshs. 22,000/= having reason to believe to be stolen stock being the property of Mr. Joseph Riitho Muiko. 4. He was arrested on 25/2/2023 and arraigned in court on 27/2/2023 and pleaded not guilty. The applicant changed plea on 10/5/2023. He was convicted on his own plea of guilty. He mitigated and Probation and after care services report was filed. The court sentenced the application to 3 years to run from the date of arrest on 27/2/2023. 5. He was convicted in E249 of 2023 with robbery contrary to Section 296(2). The particulars of the offence were that on the 24th day of July, 2020 at around 2030hrs in Nyanguthi village, Kieni West Sub-county within Nyeri County, jointly with others not before court armed with crude weapons robbed Joseph Mwangi Macharia cash of Kshs. 4,000/= and Nokia plus 1 mobile phone valued at Kshs. 9,000/= and at, immediately before or immediately after the time of such robbery used violence to the said Joseph Mwangi Macharia. 6. He was sentenced to 10 years imprisonment. He was already serving sentence in E246/2023. Therefore Section 333(2) of the CPC did not apply to him. The said section provides as follows: **(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 (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.** 1. The operative words are that the accused had been held in custody, the sentence shall take account of the period spent in custody. The applicant was not held in custody prior to the conviction. He was arrested, convicted and days spent from 27.02.2023 taken into consideration in E246 of 2023. 2. Subsequently, he was also convicted in CR E1011 of 2023 to serve 5 years imprisonment on 13/7/2023. The particulars of the offence were that between the night of 28th and 29th April, 2020 at Nganyuthe village in Kieni West Sub-county within Nyeri County the appellant broke and entered into a building namely shop belonging to Cecilia Nyawira and stole from therein items as per the attached sheet and mobile phone make Tecno Y2 all valued at Kshs. 45,000/= the property of the said Cecilia Nyawira. 3. At that time he was already convicted in E249 of 2023 and E246 of 2023. 4. The law requires that sentences for such offences be cumulative though he has indicated that Section 333(2) was not available to him. Section 37 of the Penal Code provides as follows: Where a person after conviction for an offence is convicted of another offence, either before sentence is passed upon him under the first conviction or before the expiration of that sentence, any sentence, other than a sentence of death, which is passed upon him under the subsequent conviction shall be executed after the expiration of the former sentence, unless the court directs that it shall be executed concurrently with the former sentence or any part thereof: Provided that it shall not be lawful for a court to direct that a sentence of imprisonment in default of payment of a fine shall be executed concurrently with a former sentence under subparagraph (i) of paragraph (c) of subsection (1) of section 28 or of any part thereof. 1. Therefore, there is no error in not applying Section 333(2) as the applicant was already serving a lawful sentence. The application is therefore dismissed. Orders 1. The upshot of the foregoing is that I make the following orders: 2. There is no error in not applying Section 333(2) as the applicant was already serving a lawful sentence. 3. The application is therefore dismissed. **DELIVERED, DATED** and **SIGNED** at **NYERI** on this **9th** day of **June, 2026**. Ruling delivered ex tempore in open court. **KIZITO MAGARE** **JUDGE** **In the presence of:-** Mr. Kihara for the State Pro se Applicant present Court Assistant – Martin