Maina v Republic (Miscellaneous Criminal Application E119 of 2025) [2025] KEHC 16700 (KLR) (28 October 2025) (Ruling) Neutral citation: [2025] KEHC 16700 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT KISUMU MISCELLANEOUS CRIMINAL APPLICATION E119 OF 2025 JM OMIDO, J OCTOBER 28, 2025 BETWEEN CALVIN OMOLLO MAINA ................................................................... APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT RULING 1. The Applicant herein, vide the Notice of Motion dated 16th April, 2025 seeks an order for the review of his sentence, so that the period that he spent in custody awaiting conclusion of his trial is taken into account, in line with Section 333(2) of the Criminal Procedure Code, Cap 75 Laws of Kenya, which provides that: 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. 2. I have gone through the record of the lower court and note that the Applicant took plea on 23rd August, 2024 and was remanded in custody. He remained in custody until his case was concluded. He was ultimately convicted and thereafter sentenced to serve imprisonment for 10 years on 10th March, 2025. 3. The trial court rendered itself as follows when sentencing the Applicant: “ Accused’s plea in mitigation considered. I order that he be sentenced to 10 years imprisonment. Right of appeal 14 days. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16700/eng@2025-10-28 1
page 1 of 2
A copy of the judgement to be provided to the accused person.” 4. The Court of Appeal in Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR explained what amounts to “taking into account the period spent in custody” under Section 333(2) of the Criminal Procedure Code as follows: “ Taking into account” the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody. It is not enough for the court to merely state that it has taken into account the period already spent in custody…”. 5. The Judiciary Sentencing Policy Guidelines provides that: “ The proviso to section 333(2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody if the convicted person had been in custody during the trial. Failure to do so impacts on the overall period of detention which may result in an excessive punishment that is not proportional to the offence committed. In determining the period of imprisonment that should be served by an offender, the court must take into account the period in which the offender was held in custody during the trial.” 6. From the authority and the text above, the trial court should have ordered the sentence of imprisonment for 10 years to run from 23rd August, 2024, being the date that the Applicant took plea and was remanded in custody. 7. It is clear from the record of the trial court, which is before me, that the period that the Applicant remained in custody while his trial proceeded was not taken into account by the trial court, as provided for under Section 333(2) of the Criminal Procedure Code. 8. In the result, and considering the foregoing, the Applicant’s application is merited. I allow it and review the sentence only to the extent that the sentence of 10 years imprisonment shall run from 23rd August, 2024. 9. This file is closed. DELIVERED (VIRTUALLY) DATED AND SIGNED THIS 28TH DAY OF OCTOBER, 2025. JOE M. OMIDO JUDGE Applicant: Present, virtually. Respondent: Ms. Muema. Court Assistants: Mr. Ngoge & Mr. Juma. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16700/eng@2025-10-28 2
page 2 of 2