Otoki v Director of Public Prosecutions (Criminal Miscellaneous Application E035 of 2025) [2025] KEHC 18546 (KLR) (24 November 2025) (Ruling) Neutral citation: [2025] KEHC 18546 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT NYAMIRA CRIMINAL MISCELLANEOUS APPLICATION E035 OF 2025 TW CHERERE, J NOVEMBER 24, 2025 BETWEEN PHILIP ONDIEKI OTOKI ...................................................................... APPLICANT AND DIRECTOR OF PUBLIC PROSECUTIONS .................................... RESPONDENT RULING 1. The Applicant, Philip Ondieki Otoki, filed a Notice of Motion seeking orders under Section 333(2) of the Criminal Procedure Code that the period of 2 years and 6 months allegedly spent in remand custody during the trial in Nyamira CM Criminal Case 367 of 2015 be considered in computing the sentence he is serving. 2. In his Supporting Affidavit, he states that he remained in remand custody for the said period before conviction for robbery with violence contrary to section 296(2) of the Penal Code, for which the trial court imposed the death sentence. 3. The Respondent did not file any response to oppose the Application. However, during the hearing, the Applicant clarified that his death sentence was subsequently commuted to a term of 14 years. 4. Upon perusal of the court record, this Court traced the appellate judgment in which the Applicant’s sentence was subsequently commuted by the High Court in HCCRA No. 83 of 2016 (consolidated with Nos. 84, 87, 89 and 90 of 2027), the judgment having been delivered on 21st December 2028. 5. The issue for determination is whether this Court can give effect to section 333(2) of the Criminal Procedure Code in light of the commuted sentence now being served by the Applicant. 6. Section 333(2) requires a sentencing court to take into account the period spent in custody when imposing a custodial sentence. At the time of conviction, however, the trial court imposed the mandatory death sentence, rendering section 333(2) incapable of application at that stage. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18546/eng@2025-11-24 1
page 1 of 2
7. The Applicant’s sentence was later set aside and substituted by the High Court in its appellate jurisdiction. The substituted sentence is therefore a fresh and lawful sentence of the appellate court, and any computation, clarification, or adjustment of that sentence falls exclusively within the jurisdiction of that court. 8. This Court, sitting at first instance, has no mandate to reopen, revise, or recalculate a sentence that now derives its legal force from the High Court acting in its appellate capacity. 9. If the Applicant is aggrieved by the manner in which the High Court addressed (or did not address) the period spent in custody, his recourse lies in that appellate path, not through the present application. 10. The Application is therefore without merit and is hereby dismissed. DELIVERED AT NYAMIRA THIS 24TH DAY OF NOVEMBER, 2025 WAMAE. T. W. CHERERE JUDGE Appearances Court Assistant - Hilda Applicant - Present For the DPP - Mr. Mochama https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18546/eng@2025-11-24 2
page 2 of 2