https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11222
The applicant remained in custody from 28 May 2022 and the trial record showed no indication that the sentencing court considered the pre-trial custody period. That omission breached section 333(2) of the Criminal Procedure Code and justified revision of the sentence commencement date to the date of arrest.
Source-derived case information.
- Citation
- [2026] KEHC 11222 (KLR)
- Parties
- Applicant: Wycliffe Ong’ondo Sambaya; Respondent: Republic
- Court
- High Court
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E111 of 2026
- Procedural Posture
- Criminal Revision / Sentence Review Application
- Outcome
- Application allowed
- Judges
- ["DR Kavedza"]
- Legal Topics
- Defilement, Sentence Computation, Pre Trial Custody Deduction, Section 333(2) CPC, Revision of Sentence Commencement Date
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wycliffe Ong’ondo Sambaya
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Sentence Review Application
Legal Issues
- 1 Whether the trial court failed to consider the period the applicant spent in pre-trial custody under section 333(2) of the Criminal Procedure Code.
- 2 Whether the High Court should revise the commencement date of the applicant’s sentence.
Ratio Decidendi
The applicant remained in custody from 28 May 2022 and the trial record showed no indication that the sentencing court considered the pre-trial custody period. That omission breached section 333(2) of the Criminal Procedure Code and justified revision of the sentence commencement date to the date of arrest.
Court Disposition
Application allowed
Orders
- The sentence imposed by the trial court shall run from 28th May 2022, the date of the applicant’s arrest.
- Orders accordingly.
Full Case Text
Judgment text and source record
1 paragraphs
Sambaya v Republic (Criminal Revision E111 of 2026) [2026] KEHC 11222 (KLR) (22 July 2026) (Ruling) Neutral citation: [2026] KEHC 11222 (KLR) Republic of Kenya In the High Court at Kibera Criminal Revision E111 of 2026 DR Kavedza, J July 22, 2026 Between Wycliffe Ong’ondo Sambaya Applicant and Republic Respondent Ruling 1.The applicant was charged with and convicted for the offence of defilement contrary to section 8(1) as read with 8(3) of the Sexual Offences Act, No. 3 of 2006. He was sentenced to serve twenty (20) years imprisonment. 2.The applicant has filed the present application seeking sentence review. He contends that the trial court failed to consider the period spent in remand custody before sentencing, contrary to section 333(2) of the Criminal Procedure Code. He therefore urges the Court to revise the commencement date of his sentence. 3.I have considered the application, the grounds advanced, the record and the applicable law. 4.The proviso to section 333(2) of the Criminal Procedure Code imposes a mandatory duty on a sentencing court to consider the period an accused person has spent in lawful custody before sentence. This principle has been affirmed by the Court of Appeal in Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR and Bethwel Wilson Kibor v Republic [2009] eKLR, and by the High Court in Vincent Sila Jona & 87 Others v Kenya Prison Service & 2 Others [2021] eKLR. 5.It is mandatory for every sentencing court to take into account the period an accused has spent in pre-trial custody, unless the law expressly provides otherwise. 6.The record shows that the applicant was arrested on 28th May 2022 and remained in custody throughout the trial, having never been released on bond or bail. I have examined the original trial court record and find no indication that the learned trial magistrate took the period spent in remand custody into account when passing sentence. The omission warrants this Court's intervention under section 333(2) of the Criminal Procedure Code. 7.Consequently, the application is merited and is hereby allowed. The sentence imposed by the trial court shall run from 28th May 2022, being the date of the applicant's arrest, in accordance with section 333(2) of the Criminal Procedure Code, Cap. 75. Laws of Kenya.Orders accordingly. RULING DATED AND DELIVERED VIRTUALLY THIS 22ND DAY OF JULY 2026.D. KAVEDZAJUDGEIn the presence of:Applicant PresentMutuma for the RespondentKarimi Court Assistant.