JO v Republic (Criminal Revision E031 of 2025) [2025] KEHC 18888 (KLR) (24 November 2025) (Ruling) Neutral citation: [2025] KEHC 18888 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT BUNGOMA CRIMINAL REVISION E031 OF 2025 REA OUGO, J NOVEMBER 24, 2025 BETWEEN JO ................................................................................................................ APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT RULING 1. In his chamber summons filed before this court on 3/10/2025, the applicant, JO, has invited the court to invoke the provisions of section 333(2) of the Criminal Procedure Code and to consider that he spent one year in custody, which was not factored into the sentence. He pointed out that he was arrested on 6/9/2023 and convicted on September 17th, 2024. 2. The appellant was charged with the offence of incest contrary to section 20 (1) of the Sexual Offences Act No 3 of 2006. 3. At the hearing of the application, the respondent argued that the sentence the appellant is serving is illegal and that the lawful sentence is life imprisonment. It urged the court to set aside the trial court's sentence and substitute it with a sentence of life imprisonment. 4. The Court of Appeal in Mutia v Republic (Criminal Appeal E081 of 2023) [2024] KECA 684 KLR where the Court held that: “ The appellant is aggrieved by the enhancement of the sentence by the first appellate court, an issue that we consider to be a matter of law and hence open for our analysis. As rightly admitted by counsel for the respondent, it is trite that enhancement of a sentence handed out should only be done when the appellant has been given adequate notice of that possibility, so that he is informed of the consequences of proceedings with the appeal” (See also JJW v Republic [2013] eKLR and Francis Odingi v Republic [2011]. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18888/eng@2025-11-24 1
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5. In MGK v Republic [2020] eKLR, this Court held that: “ 20. Further, the case of Sammy Omboke & another v R. [2019] eKLR, discussed the jurisdiction of the first appellate court on enhancement of sentence by holding thus: “ In the instant appeal, there was no cross-appeal by the prosecution for enhancement of sentence before the High Court nor was there a warning to the appellant by court that the sentence meted upon then (sic) should be enhanced and there was no notice of enhancement. Guided by the judicial pronouncements of this Court above, we find that the learned judge erred in enhancing the sentence meted out on the appellants. In the absence of a crossappeal and notice and or warning the judge had no jurisdiction to enhance the sentence.” 21. It was admitted before us by the respondent that the State had not filed any cross-appeal against sentence nor had they served any notice of enhancement on the appellant. In the circumstances, the trial court having properly exercised it discretion in sentencing the appellant, and imposed a sentence that was double the minimum of 10 years provided for that offence, it was not open to the learned judge to review the sentence upwards.” 6. The respondent failed to file notice of enhancement of sentence; therefore, this court will fall into error if it were to enhance the sentence meted out on the appellant. 7. I now turn to consider whether the trial court complied with the provisions of Section 333(2) of the Criminal Procedure Code. It provides: “ Subject to the provisions of Section 38 of the Penal Code, 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 sub section (1) has prior, to such sentence shall take account of the period spent in custody.” 8. According to The Judiciary Sentencing Policy Guidelines: “ 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.” 9. A review of the record shows that the trial magistrate took the pre-sentence report into account but failed to take into account the period during which the offender was held in custody on remand. Therefore, I find that the application has merit. The applicant shall therefore serve five (5) years' imprisonment, commencing on 8th of September 2023. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18888/eng@2025-11-24 2
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DATED, SIGNED AND DELIVERED AT BUNGOMA THIS 24TH DAY OF NOVEMBER 2025 R.E. OUGO JUDGE In the presence of: JO/Applicant Miss Matere - For the Respondent; Wilkister - C/A https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18888/eng@2025-11-24 3
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