https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8814

Onyuro v Republic (Miscellaneous Criminal Application E024 of 2025) [2026] KEHC 8814 (KLR) (22 June 2026) (Ruling) Neutral citation: [2026] KEHC 8814 (KLR) Republic of Kenya In the High Court at Homa Bay Miscellaneous Criminal Application E024 of 2025 PJO Otieno, J June 22, 2026 Between Sylvester Odiwuor Onyuro Applicant and Republic Respondent (Arising from the judgment and sentence in Original at Mbita PMC Criminal Case No. 310 of 2014 and High Court Appeal at Homa Bay in HCCRA No. 4 of 2015) Ruling 1.Before the court for determination is a Notice of Motion Application dated 15th January 2025 seeking the court’s intervention to review and adjust the Applicant’s sentence pursuant to Section 333(2) of the Criminal Procedure Code. Specifically, the Applicant prays that the period of one (1) year, seven (7) months, and nine (9) days, which he spent in pre-trial remand custody prior to his sentencing, be factored into and deducted from his current custodial sentence so as to proportionately reduce the same. 2.The records show that the Applicant was charged, tried and convicted of the offence of Robbery with Violence contrary to Section 296 of the Penal Code. The particulars of the charge were that on the 24th February 2014, at the Mangera area within Mbita in Homa Bay County, the Applicant, acting in concert with others not before the court and armed with dangerous weapons namely pangas and metal bars, robbed Matheus Oniala Odongo of a Toyota Hilux Double Cabin vehicle, a Samsung mobile phone and cash. The victim was said to have been violently subdued, sandwiched in the back seat of his own vehicle, driven to a sugarcane plantation in Awasi, stripped naked and abandoned. 3.The Applicant pleaded not guilty of the charges prompting full trial of the matter. The trial terminated on 23rd October 2015 when the trial court found the Applicant guilty, convicted him and consequently sentenced him to serve death as the prescribed penalty. 4.Dissatisfied with the trial court’s decision, the Applicant preferred a first appeal to the High Court at Homa Bay in Criminal Appeal No. 4 of 2015 challenging both his conviction and sentence. In a judgment delivered on 16th July 2016, this Court found the appeal to be devoid of merit, dismissed it in its entirety and formally confirmed both the conviction and the death sentence. However, the imposed and confirmed death sentence was subsequently commuted to life imprisonment by the presidential decree 5.It is the commuted sentence of life imprisonment that the Applicant is currently serving, and for which he now seeks a deduction of his pre-trial remand custody period under Section 333(2) of the Criminal Procedure Code. The Applicant, acting in person, argues that under Section 333(2) of the Criminal Procedure Code, every court is legally bound to take into account the exact period an accused person spent in custody prior to the date of conviction. He points out that he was arrested on 14th March 2014 and remained in continuous remand custody until 23rd October 2015, a duration of nineteen months and nine days, which was never credited to him by either the trial court or this Court on appeal. 6.The Applicant places heavy reliance on the Court of Appeal decision in Ahamad Abolfathi Mohammed M & Another vs Republic [2018] eKLR, which established that the proviso to Section 333(2) of the Criminal Procedure Code places a mandatory, non-discretionary duty on courts to give real and practical effect to time served in custody prior to sentencing. He submits that the failure to take the period into account violates his fundamental right to a fair trial and the benefit of the least severe of the prescribed punishments under Article 50(2)(p) of the Constitution. He therefore prays that this Court exercise its jurisdiction to deduct the pre-trial custody period from his current sentence. 7.The Respondent on the other hand argues that the application is fundamentally moot and incapable of execution. The Respondent points out that the Applicant is currently serving a commuted sentence of life imprisonment. Because a life sentence is, by its very nature, an indeterminate sentence without a defined terminal date, it is mathematically and legally impossible to subtract a specific period of pre-trial custody from it. The Respondent therefore urges this Court to dismiss the application as an exercise in futility that lacks any practical utility for the Applicant. Determination 8.The Applicant’s motion is hinged on the request for the application of Section 333(2) of the Criminal Procedure Code. The said provision 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.” 9.In David Ouma vs Republic (Criminal Petition E011 of 2021), the petitioner, who was serving a commuted life sentence for robbery with violence, sought a review under Section 333(2) of the Criminal Procedure Code. The court dismissed the petition, ruling that Section 333(2) of the Criminal Procedure Code, which allows remand time to be considered in sentencing, was inapplicable in the circumstances. The court stressed that the provision only affected definite prison sentences, and life imprisonment is not a definite term, thus taking into account period spent in remand custody would be to no effect. 10.Similarly, in Luvisia vs DPP (Criminal Revision E229 of 2023), the court addressed a nearly identical application and dismissed a similar application by holding that the imposed sentence was one for life and an indeterminate term which was incapable of being subject to exactitude computation to ascertain when it shall terminate. 11.To the Court, no meaningful purpose was served by the invocation of the mandatory provisions of Section 333(2) CPC in the circumstances of this case. 12.By the foregoing, the court holds that while the wording of the proviso is couched in mandatory terms, its operational mechanism is fundamentally dependent on the imposition of a determinate or definite sentence of years. A determinate sentence has a clear, legally defined terminal date. In such cases, deducting pre-trial custody is a straightforward mathematical calculation that directly accelerates the date of the convict’s release. 13.In stark contrast, a sentence of life imprisonment is an indeterminate sentence. It is not pegged to a specific calendar duration but rather to the biological lifespan of the convict, an event of entirely uncertain and unpredictable duration. Because the terminal date of a life sentence is unknown, any attempt to execute a subtraction of a finite remand period from an infinite or undefined lifespan is logically and mathematically impossible. The calculation is completely moot because it does not alter the terminal date of the sentence, nor does it accelerate the Applicant’s prospect of release. 14.In the circumstances, because the Applicant is currently serving a commuted sentence of life imprisonment, there is no determinate term from which his pre-trial custody period can be mathematically subtracted. The Applicant’s application under Section 333(2) of the Criminal Procedure Code is substantively moot and procedurally incompetent. The same is hereby dismissed. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 22ND DAY OF JUNE, 2026.PATRICK J O OTIENOJUDGE