Odhiambo v Republic (Criminal Miscellaneous Application E053 of 2025) [2026] KEHC 8337 (KLR) (15 June 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT VIHIGA** **CRIMINAL MISC. APPLICATION NO. E053 OF 2025** **SIMON ODHIAMBO……………………………………………….……….APPLICANT** **VERSUS** **REPUBLIC………………………………………………….…………….RESPONDENT** **Coram: Before Justice R. Nyakundi** **Mr. Leina Davies for the State** **RULING** 1. The Applicant herein was charged with others not before this court with the offence of gang rape contrary to Section 10 of the Sexual Offences Act No 3 of 2006. He was also charged with an alternative charge of committing an indecent act with an adult contrary to Section 11(A) of Sexual Offences Act No 3 of 2006. He was tried and convicted of the main charge and sentenced to fifteen (15) years imprisonment. 2. Being aggrieved by the said decision, he lodged an appeal before this court in HCCRA No E006 of 2022. In its decision of 20th December 2023, this court dismissed his appeal and upheld his conviction and sentence. 3. Being aggrieved with the said decision, he filed an application dated 25th April 2024 seeking review of his sentence which was dismissed by this court. 4. On 9th October 2025, he filed the Notice of Motion application dated 18th August 2025 herein seeking an order that the period he spent in remand be considered as part of his sentence. 5. He pointed out that his sentence was made to run from the date of its pronouncement and that he would face irreparable loss if the orders sought are not granted. 6. None of the parties filed any Written Submissions. This Ruling is based on the Applicant’s affidavit evidence only. **Decision** 1. In her decision of 20th December 2023, while determining the Applicant’s appeal, Kamau J had indicated that he was at liberty to bring an application under Section 333(2) of the Criminal Procedure Code once there were lower court records to show when he was arrested. 2. Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya) provides that:- “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” (emphasis court). 1. Further, Clause 4.6.20 (ix) of the Judiciary Sentencing Policy Guidelines provides that:- “The Sentencing Court shall be guided by the sentencing principles and objectives set out in Part I of these the Guidelines in all resentencing hearings. The following mitigating factors were set out by the Supreme Court as particularly relevant in a resentencing hearing:… Time already spent in prison by the convict…” 1. The requirement under Section 333(2) of the Criminal Procedure Code was restated by the Court of Appeal in **Ahamad Abolfathi Mohammed & Another vs 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.* 1. The applicant in this matter seems also to have move the court under Section 362 of the CPC and Section 333(2) of the same code. In this respect the courts draw its jurisdiction under Art165 (6) (7) of the constitution as follows: *(6) The high court has supervisory jurisdiction over the subordinate courts and over any persons, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.* *(7) For the purposes of clause (6), the high court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6) and may make any order or give any direction it considers appropriate to ensure the fair administration justice.* 1. A constitution is an exercise in balancing of the individual against the democratic rights of the majority. On the one hand, the fundamental rights and freedoms of the individual must be entrenched against future legislative action if they are to be properly protected; on the other hand, the powers of the legislature must not be unduly circumscribed if the democratic process is to be allowed its proper scope. The balance is drawn by the Constitution. The judicial task is to interpret the Constitution in order to determine where the balance is drawn. 2. The issue being raised here by the applicant is also ordained by the judicial sentencing policy guidelines 2023 which provides inter alia as follows: * ***Proportionality:*** *The sentence meted out must be proportionate to the offending behaviour meaning it must not be more or less than is merited in view of the gravity of the offence. Proportionality of the sentence to the offending behaviour is weighted in view of the actual, foreseeable, and intended impact of the offence as well as the responsibility of the offender.* * ***Equality/Uniformity/Parity/Consistency/Impartiality:*** *The same sentences should be imposed for same offences committed by offenders in similar circumstances.* * ***Accountability and Transparency:*** *The reasoning behind the determination of sentence should be clearly set out and in accordance with the law and the sentencing principles laid out in these guidelines.* * ***Inclusiveness:*** *Both the offender and the victim should participate in and inform the sentencing process.* * ***Totality of the Sentence:*** *The sentence passed for offenders convicted for multiple counts must be just and proportionate, taking into account the offending behaviour as a whole.* * ***Retribution:*** *To punish the offender for their criminal conduct in a just manner.* * ***Deterrence:*** *To deter the offender from committing a similar or any other offence in future as well as to discourage the public from committing offences.* * ***Rehabilitation:*** *To enable the offender to reform from his/her criminal disposition and become a law-abiding person.* * ***Restorative justice:*** *To address the needs arising from the criminal conduct such as loss and damages sustained by the victim or the community and to promote a sense of responsibility through the offender’s contribution towards meeting those needs.* * ***Community protection:*** *To protect the community by removing the offender from the community thus avoiding the further perpetuation of the offender’s criminal acts.* * ***Denunciation:*** *To clearly communicate the community’s condemnation of the criminal conduct.* * ***Reconciliation:*** *To mend the relationship between the offender, the victim and the community.* * ***Reintegration:*** *To facilitate the re-entry of the offender into the society.* 1. Pre-trial detention emphasizes that depriving liberty before trial must be objectively justified of minimum duration and reserved only for regulated circumstances. Given our constitutional provisions on the Bill of Rights under Chapter 4, courts should bear in mind that overcrowding is one of the most pressing problems most prisons in Kenya. Pre-trial detention meaning the jailing of presumptively innocent people who are yet to be tried and convicted is supposed to reserve for more serious cases. As our constitution emphasises in our society right to liberty is the norm and detention prior to trial or without trial is carefully limited exception. 2. Notably, a perusal of the charge sheet indicated that the Applicant was arrested on 4th January 2019. He seemed to have been released on bond on 3rd July 2020 when the Trial Court indicated that it had considered his Pre-Bail Report and that one Jairus Bulimo was willing to deposit security of a title deed. The court ordered that the previous bail/bond terms be maintained. He was remanded again on 29th March 2022 after the close of the hearing and pending Judgment. This court noted that the typed proceedings herein were incomplete and did not show the complete Judgment of the Trial Court and/or when the Applicant was sentenced. 3. In the premises, this court could not be able to calculate the time he spent in remand between when he was remanded and when he was sentenced. However, the period between when he was arrested and when he was bonded was clear and that ought to have been taken into account while computing his sentence in accordance with Section 333(2) of the Criminal Procedure Code, Cap 75 (Laws of Kenya). 4. Accordingly, the upshot of this court's decision was that the Applicant’s Notice of Motion application dated 18th August 2025 and filed on 9th October 2025 was partially merited and the same be and is hereby allowed. 5. The period between 4th January 2019 and 3rd July 2020O when the Applicant was remanded during trial be and is hereby taken into account while computing his sentence in accordance with Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya). 6. Orders accordingly. **DATED AND DELIVERED AT ELDORET VIA CTS AND EMAIL THIS 15TH** **DAY OF JUNE 2026** **…………………………………….** **R. NYAKUNDI** **JUDGE**