https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9329

Kithiga v Republic (Miscellaneous Criminal Application E041 of 2025) [2026] KEHC 9329 (KLR) (25 June 2026) (Ruling) Neutral citation: [2026] KEHC 9329 (KLR) Republic of Kenya In the High Court at Chuka Miscellaneous Criminal Application E041 of 2025 RL Korir, J June 25, 2026 Between Shadrack Kinyua Kithiga Applicant and Republic Respondent Ruling 1.The Applicant Shadrack Kinyua Kithiga seeks review of the sentence imposed on him by Hon. P.N Maina (CM) on the 15th July 2021. He had been charged, tried and convicted of the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act. He was sentenced to 20 years’ imprisonment. 2.The Applicant appealed to the High Court vide Criminal Appeal No. E008/2022. In a judgement dated 20th March 2023 Shariff J. dismissed the appeal. She however clarified that the sentence confirmed at 20 years’ imprisonment would be computed from the date of the Appellant’s arraignment in court being 19th day of October 2020. 3.In averments in the supporting affidavit and submissions before court, the Applicant urged that the time he spent in custody was not taken into consideration. He also urged that he deserved non-custodial sentence as he has now reformed and had family responsibilities to take care of. 4.The Application was opposed by the Respondent. In submissions dated 21st April 2026, the Respondent stated that omission by the trial court to explicitly state that it had taken not account the pre-trial detention did not vitiate the sentence. 5.The gravamen of the Applicant’s present application is that the time he spent in pre-trial custody was not taken into consideration by the trial court. He also prayed to be granted a non-custodial sentence. 6.Section 333 (2) of the Criminal Procedure Code provides:-“333(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.” 7.In DS v Republic [2022] KEHC 2502 (KLR), the court reinforced the importance of real-time effect under Section 333(2) Criminal Procedure Code holding that:-“The Court of Appeal in Ahamad Abolfathi Mohammed & Another vs. Republic [2018] eKLR. (see also Bethwel Wilson Kibor vs. Republic [2009] eKLR) has also explained and buttressed the absolute need for the court to give real-time effect of Section 333(2) of the Criminal Procedure Code in sentencing. And, that merely stating that you have taken account of time spent in custody is not sufficient if the sentence does not show that the period which an accused has been held in custody prior to being sentence had been taken into account.” 8.In this case however, the Applicant’s prayer had already been granted on appeal. The trial court in imposing the minimum mandatory sentence had indicated that the Accused deserved a higher sentence owing to the circumstances of the case. 9.Sharriff J. sitting on appeal had, as already stated, ordered that the pre-trial custody period be included. The prayer was therefore spent. 10.With respect to the prayer for a non-custodial sentence, Applicant urges that his sentence was harsh and that he deserved a non-custodial sentence. I find this prayer untenable in law. The Applicant is serving a lawful minimum sentence provided by law. His prayer cannot be granted. 11.For clarity, the Applicant shall continue to serve the 20 years’ imprisonment which is deemed to run from 19th October 2020 being the date of his pre-trial custody.Orders accordingly. RULING DELIVERED, DATED AND SIGNED AT CHUKA THIS 25TH DAY OF JUNE, 2026...........................R. LAGAT - KORIRJUDGERULING DELIVERED IN THE PRESENCE OF APPLICANT ACTING IN PERSON, MS RUKUNGA FOR THE REPUBLIC. MURIUKI COURT ASSISTANT.