https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6789

Imende v Republic (Criminal Miscellaneous Application E014 of 2026) [2026] KEHC 6789 (KLR) (18 May 2026) (Ruling) Neutral citation: [2026] KEHC 6789 (KLR) Republic of Kenya In the High Court at Vihiga Criminal Miscellaneous Application E014 of 2026 RN Nyakundi, J May 18, 2026 Between Samson Imende Applicant and Republic Respondent Ruling 1.Before this Court is notice of motion dated 20th February 2026 which seeks the following orders:a.May this Court be pleased to hear and determine this application.b.May this Court be pleased to make an order that the Applicant's sentence should run from the date of arrestc.May this Court certify this application to be urgent and be heard on priority basis.d.May this Court waive any cost/fee involved and see to it that the Applicant shall be available at the hearing thereof. 2.Based on the grounds that:a.Section 333(2) Provision of CPC.b.Paragraph 5.1.21 sentencing Policy Guidelines Revised 2023.c.Case of Ahmed Abolifathi Mohammed and Another Vs Republic (2018 eKLR.d.More grounds in the sworn affidavit and others to be at the hearing thereof. 3.The application is supported by the annexed affidavit of Samson Imende who deponed as follows:a.That I am an adult male Kenyan citizen of sound mind hence competent and indisposition to make oath and swear this affidavit.b.That, I was arrested, charged, convicted and sentenced to serve 20 years in an offence of Robbery with violence contrary to Section 296(2) of the Penal Code.c.That, the sentence was said to run from the time of pronouncement of the sentence rather than from the date of my arrest.d.That, may the Court grant me this reprieve by making an order that my current sentence run from the day of my arrest. Decision 4.The principles under section 333(2) of the CPC are now well settled as demonstrated in the following case law:“A declaration that trial Courts are enjoined by section 333(2) of the Criminal Procedure Code, in imposing sentences, other than sentence of death to take into account of the period spent in custody. A declaration that those who were sentenced in violation of the said section are entitled to have their sentences reviewed by the high Court in order to determine their appropriate sentences. A declaration that section 333(2) CPC applies to the original sentence as well as sentence imposed during sentencing..." 5.Additionally, in Ahamad Ablofathi Mohammed & Another v Republic [2018] eKLR where the Court of Appeal held that:“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, the Court was obliged to take into account the period that they 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 proportionality by the period spent in custody. It is not enough for the Court to merely state that it is 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 June 19, 2012.” 6.Sentencing is an integral part of criminal proceedings. As such, it is a matter governed by procedural law. The Sentencing Guidelines contemplated by Section 333(2) of the CPC are inherently transformative and forward-looking. Not only are they intended to give effect to the sentences prescribed by the Legislature in a Statute but also to achieve a criminal justice system that imposes punishment that is just to society, vindicative of the interests of the victims of crimes, and commensurate with the nature of the crime and the offender. 7.On sentencing matters Appellate Courts are required to show defense to the Trial Judge’s decision, absent an error in law, an error in principle to the imposition of a sentence that is demonstrably unfit in the circumstances. In the Kenyan jurisdiction there is no authority given to the trial Courts for the dating back of any sentence in favor of an accused person. The sentence as by dint of the law is expected only to bear the date on which the learned trial Magistrate or Judge pronounces himself or herself when imposing the verdict on sentence. The only rider being the interpretation of Section 333(2) of the Criminal Procedure Code, providing for any period of incarceration which the accused has already undergone between the date of his or her arrest and the date of sentence to be taken into account as a material factor. 8.The major complaint by the Applicant is about the commencement of the sentence imposed by the trial Court. For purpose of clarity and reminder to the Applicant this is what the Court pronounced on the matter dated, signed and delivered in 20th November 2025 thus: In the circumstances of this case, I hereby sentence each of the accused persons to twenty years (20) imprisonment to run from the date of this sentence. The said sentence will however, be inclusive of the period from 18th May 2023 to 20th November 2025 when the accused persons have been in custody. The persons have a right of appeal within 14 days hereof. 9.My reading of this decision by the Trial Court renders the application res judicata and therefore dismissed with no orders as to costs under Section 382 of the CPC. DATED & DELVERED AT ELDORET THIS 18TH DAY OF MAY 2026........................................R. NYAKUNDIJUDGE