Baya v Republic (Miscellaneous Criminal Application E032 of 2025) [2025] KEHC 16324 (KLR) (29 October 2025) (Ruling) Neutral citation: [2025] KEHC 16324 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT GARSEN MISCELLANEOUS CRIMINAL APPLICATION E032 OF 2025 JN NJAGI, J OCTOBER 29, 2025 BETWEEN SIMON BEN BAYA .................................................................................. APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT RULING 1. The Applicant has filed an undated application seeking for an order that the period spent in remand pending the conclusion of his trial be factored in the sentence that he is serving. 2. The application is supported by the affidavit of the applicant wherein he states that he was convicted for the ofience of gang rape contrary to Section 20(1) and (2) of the Sexual Offences Act and was sentenced to serve 15 years imprisonment. That he was held in remand throughout the trial and now prays that the period spent in remand be taken into account in his sentence as required by Section 333(2) of the Criminal Procedure Code. 3. Section 333 (2) of the Criminal Procedure Code requires a court when sentencing an accused person who has been in custody during the trial, to take into account such period spent in custody when sentencing the accused. I have perused the record of the trial court and its judgment. The applicant was in custody throughout the trial. The sentencing magistrate in his judgment did not indicate whether he had taken into account the period spent in custody when sentencing the applicant. The provisions of the said section are mandatory. The trial court was in error in not taking into account the period spent in custody. 4. The applicant was arrested on 26/3/2022 and arraigned in court on 28/3/2022. He was sentenced on 1/11/2022. He was therefore in custody for over a period of 7 months before he was sentenced. That period ought to be taken into consideration in the sentence of 15 years imposed on the applicant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16324/eng@2025-10-29 1
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5. I accordingly order that the sentence meted out on the applicant commences from the date of his arrest, i.e on 26th March 2022. DELIVERED, DATED AND SIGNED AT GARSEN THIS 29TH DAY OF OCTOBER, 2025. J. N. NJAGI JUDGE In the presence of: Ms Mkongo for State. Applicant: Present virtually at G.K Prison Manyani. Court Assistant: Ms Rahma. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16324/eng@2025-10-29 2
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