Kithongo v Republic (Miscellaneous Criminal Application E088 of 2024) [2025] KEHC 19488 (KLR) (12 November 2025) (Ruling) Neutral citation: [2025] KEHC 19488 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT KITUI MISCELLANEOUS CRIMINAL APPLICATION E088 OF 2024 LW GITARI, J NOVEMBER 12, 2025 BETWEEN PAUL MUSYOKA KITHONGO ............................................................. APPLICANT AND REPUBLIC ........................................................................................... PROSECUTION RULING 1. The applicant has fled the present application and seeks an order that the time spent in custody be considered as required under Section 333(2) of the Criminal Procedure Code. The applicant contends that he was charged with stealing contrary to Section 268 as read with Section 275 of the Penal Code and order to serve five (5) years imprisonment. That the court did not consider the time spent in custody and he now urges the court to take into account that period. The respondent did not oppose the application. I have considered the application but even before I consider that application. 2. Although the trial Magistrate considered that the applicant had been in custody, she did not order that the sentence be reduced by the time spent in custody awaiting trial. Section 333(2) of the Criminal Procedure Code (Cap 75 Laws of Kenya) provides that: “ (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.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19488/eng@2025-11-12 1
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3. This provision was considered by the Court of appeal in the case Ahamad Abolfathi Mohamed & Another v republic C.A (2018) KECA 743 KLR where the court stated: “ Taking into account the period spent in custody must mean considering that period see that the imposed sentence is reduced proportionately by the period already spent. It is not enough for the court to merely state that it has taken into account the period already spent in custody still order the sentence to run from the date of conviction because that amounts to ignoring altogether the period already spent in custody.” 4. I find that the application has merits as the time spent in custody was not taken to reduce the sentence proportionately. The applicant had spent the period from 27/05/2022 upto 27/06/2024 in prison custody awaiting trial. This period should have been taken into account to reduce the sentence imposed proportionately. Since this never happened, I order that the sentence of five (5) years be reduced by two (2) years and eleven days to take into account the time spent in custody awaiting trial. DATED, SIGNED AND DELIVERED AT KITUI THIS 12TH DAY OF NOVEMBER, 2025. HON. LADY JUSTICE L. GITARI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19488/eng@2025-11-12 2
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