Kevin Ouma Ngesa v Republic

Ngesa v Republic (Miscellaneous Criminal Application E166 of 2025) [2025] KEHC 17278 (KLR) (26 November 2025) (Ruling) Neutral citation: [2025] KEHC 17278 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT KISUMU MISCELLANEOUS CRIMINAL APPLICATION E166 OF 2025 A MABEYA, J NOVEMBER 26, 2025 BETWEEN KEVIN OUMA NGESA ........................................................................... APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT RULING 1. Kevin Ouma Ngesa (‘the applicant’) was charged with the ofience of defilement of a 15-year-old contrary to section 8(1) and 8(3) of the Sexual Offences Act. 2. He was tried and found guilty. He was convicted of the charge and was sentenced to 20 years’ imprisonment. The applicant appealed to this Court against the sentence only. By a Judgment made on 23/5/2025, this Court (B M Musyoka J) dismissed the appeal in its entirety. 3. By an undated Motion lodged in this Court on 1/10/2025, the applicant sought that the period spent in custody during the trial be taken into consideration in the calculation of his sentence. 4. It is clear that section 333(2) of the Criminal Procedure Code requires that the trial court does take into consideration the period an accused has spent in custody when meting out its sentence. That is the preserve of the trial court. In the present case, the sentence was appealed against but this Court confirmed the same. The appeal having been dismissed by Musyoka J as aforesaid, this Court is bereft of any jurisdiction to disturb the sentence. 5. My view is that, it is only the Court of Appeal that can now disturb that decision. This Court cannot therefore interfere with that sentence. 6. Accordingly, the undated application is without merit and is hereby dismissed. It is so ordered. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17278/eng@2025-11-26 1

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