Vignei v Republic (Revision Case E051 of 2025) [2025] KEHC 19514 (KLR) (14 November 2025) (Ruling) Neutral citation: [2025] KEHC 19514 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT HOMA BAY REVISION CASE E051 OF 2025 PJO OTIENO, J NOVEMBER 14, 2025 BETWEEN MAGERO OCHIENG VIGNEI ............................................................... APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT RULING 1. The lower court file has been placed before this Court pursuant to an undated Notice of Motion filed on 08/05/2025. On its face, the said application, the Applicant makes two prayers; to be accorded the statutory benefit of time spent in remand custody, and, that his sentence be revised. Such applications are, in general, treated by the Court as seeking revision of the trial court’s orders pursuant to Sections 362 and 364 of the Criminal Procedure Code. In this matter however, the sentence was never passed by the lower court to be subjected to the supervisory jurisdiction of this court. Strictly speaking, revision is obviously unavailable. 2. However, the court of justice never shuts its eyes to a violation of a basic right like that of fair hearing envisaged by article 50(2)(p) of the Constitution. When it emerges that a mistake has occurred with the gravity of taking away a statutory benefit and negating on a non-derogable right, such a mistake must be rectified. 3. Upon perusal of the trial court record, it is evident that the Applicant was charged with the offence of murder contrary to Section 203 as read with 204 of the Penal Code. Upon being convicted and after address on mitigation, he was sentenced to serve a term of 15 years in prison, on the 3.11.2022. 4. It is equally evident from the same record that he was never admitted to bail hence spent his entire trial time in remand custody 5. Having considered the record and the applicable law, the Court finds that the sentence imposed upon the Applicant never took into consideration the period spent in remand custody as is mandatory under https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19514/eng@2025-11-14 1
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section 333(2) Criminal Procedure Code. The effect is that the applicant was denied his right under Article 50(2)(p) of the Constitution. That denial of right commands remedy that what was taken away be restituted. It is therefore with an order that the sentence shall be computed to commence on the 6.8.2020. 6. It is so ordered. 7. The file is hereby ordered closed. DATED, SIGNED AND DELIVERED THIS 14TH DAY OF NOVEMBER, 2025. PATRICK J O OTIENO JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19514/eng@2025-11-14 2
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