Andrew v Republic (Miscellaneous Criminal Application E077 of 2025) [2026] KEHC 7960 (KLR) (3 June 2026) (Ruling)

Andrew v Republic (Miscellaneous Criminal Application E077 of 2025) [2026] KEHC 7960 (KLR) (3 June 2026) (Ruling) Neutral citation: [2026] KEHC 7960 (KLR) Republic of Kenya In the High Court at Machakos Miscellaneous Criminal Application E077 of 2025 JWW Mong'are, J June 3, 2026 Between Regina Mutheu Andrew Applicant and Republic Respondent Ruling 1.The applicant was charged with the offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code. In the course of the trial the accused person and the prosecution entered a plea bargain agreement and was subsequently convicted of the said offence and sentence to serve a custodial sentence for a period of 10 years. The present application has been brought by the accused person under a certificate of urgency and in which the accused seeks the following prayers;- to wit;-a.That I seek review of my sentence pursuant to section 333(1) of the Criminal Procedure Code;b.That if the prayer above is granted, I humbly request that this Honourable court to consider the time I spent in remand.;c.That as the sole provider, my incarceration has caused undue hardship to my dependants;d.That I wish to be present during the hearing of this application. 2.The application was canvassed orally by the accused and vehemently opposed by the Prosecution. It was the accused submissions that though she was satisfied by the period of the sentence metetd out on her in the criminal case after the plea bargain agreement, she sough to have the court consider the period she spent in remand before her conviction and sentence. She informed the court that she had been arrested in the on 10th March 2024 and was convicted and sentenced on 30th July 2024. She informed the court that she spent the period of four (4) months between her arrest and conviction in remand and had brought the present application seeking to have the court include that period of four (4) months in calculating her ten year sentence period. 3.In opposing the application, the prosecution argued that the conviction was a s a result of a plea bargain agreement between the Accused person and the Prosecution and that the accused having pleaded guilty to the offence of manslaughter had been convicted and sentenced to serve a jail term of 10 years. The Prosecution argued that the said jail term was a result of the negotiations by the parties pursuant to the plea bargain agreement under section 137 of the Criminal Procedure Code especially Section 137(9) therein, the law provided that once the state and the accused person have reached an plea bargain agreement and a conviction is reached, the same was deemed valid and could not be appealed against unlike in ordinary convictions after a full trial. The prosecution further argued that the sentence pursuant to plea bargain agreement could only be challenged if the same was procured through fraud and or misrepresentation. He urged the court to find that this was not the case in the present matter. 4.Upon reviewing the record, the trial court had extensively discussed and reviewed various decisions touching on the importance of the various types of sentences in the criminal justice system. The trial court in the judgment of the lower court appreciated the import and place of section 333(2) of the Criminal Procedure Code especially where sentence has been arrived at as a result of plea bargain agreement between the Accused and the state. 5.The trial court in its determination herein expressly noted during sentencing stated thus;-“(36)In the premises and in harmony with the principles of sentencing, a custodial sentence will be most appropriate to best serve the overall purpose of sentencing namely, retribution, deterrence, rehabilitation, restorative justice, community protection, denunciation and a promotion of a sense of responsibility. However, the custodial sentence should be appropriately tampered with the heavy mitigating factors and other key factors, and in particular folly of youth highlighted above.(37)consequently, this Court sentences the convict to serve a term of imprisonment of 10 years”. 6.I have considered the above observations from the trial court. In agree with the applicant that the same is silent on the period that the accused spent in remand before conviction. What in my view, the applicant is seeking from this court is that the inclusion of the four months remand time to be included in calculating the 10 years sentence and that the said sentence be deemed to have commenced from the date when she was placed in custody, that is from the 10.3.2024. In my view and despite the trial court extensively discussing the place and import of section 333(2) in sentencing even where conviction was arrived at after a plea bargain agreement was reached between the accused and the State, I note that this factor is not clearly captured in the final sentence meted to the Applicant by the trial Court. 7.Section 333(2) of the CPC provides as follows;“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”. 8.I hold the position that the above provision of the law commands the trial court to pronounce clearly that the sentence period shall be deemed to have commenced from the date the accused was placed in custody, which in the present case was the 10.3.2024. it is therefore my finding that this was not done in the present case. 9.Consequently, I find merit in the present application and allow the same. The Applicant’s 10-year sentence shall be deemed to have commenced from the date he was placed in custody being 10.3.2024. It is so ordered. 10.File closed. DATED SIGNED AND DELIVERED AT MACHAKOS THIS 3RD DAY OF JUNE 2026............................................................................J.W.W. MONGAREJUDGEIn the Presence ofApplicant present at Yatta GK PrisonMr. Mangare and Ms. Machuma for the StateAbdisalam - Court Assistant