Chogo v Republic (Criminal Miscellaneous Application E042 of 2024) [2026] KEHC 665 (KLR) (26 January 2026) (Ruling) Neutral citation: [2026] KEHC 665 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT VIHIGA CRIMINAL MISCELLANEOUS APPLICATION E042 OF 2024 JN KAMAU, J JANUARY 26, 2026 BETWEEN JAVAN CHOGO ........................................................................................ APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT RULING 1. The Applicant herein was charged with the ofience of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act No 3 of 2006. He had also been charged with an alternative ofience of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. He was convicted of the main charge and sentenced to fifteen (15) years imprisonment. 2. On 13th March 2024, he filed a Notice of Motion application dated 12th July 2023 seeking a review of his sentence pursuant to Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya). 3. His Written Submissions were dated 20th May 2025 and filed on 21st May 2025 while those of the Respondent were dated 2nd September 2025 and filed on 9th September 2025. This Ruling is, therefore, based on the said parties’ Written Submissions that they both relied upon. Legal Analysis 4. The Applicant invoked Section 333(2) of the Criminal Procedure Code and placed reliance on the case of Ahamad Abolfathi Mohammed & Another [2018]eKLR where it was held that courts were obliged to take into account the period spent in custody while sentencing accused persons. He averred that while he was arrested on 26th May 2022 and sentenced on 23rd May 2023, the said period was not put into consideration when he was sentenced by the Trial Court. He urged this court to grant him the orders sought. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/665/eng@2026-01-26 1
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5. The Respondent was not opposed to his application and agreed that this court may review the period that he spent in custody while the trial was ongoing. 6. Section 333(2) of the Criminal Procedure Code provides that:“ 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” (emphasis court). 7. Further, Clause 4.6.20 (ix) of the Judiciary Sentencing Policy Guidelines provides that:“ The Sentencing Court shall be guided by the sentencing principles and objectives set out in Part I of these the Guidelines in all resentencing hearings. The following mitigating factors were set out by the Supreme Court as particularly relevant in a resentencing hearing:… Time already spent in prison by the convict…” 8. The requirement under Section 333(2) of the Criminal Procedure Code was restated by the Court of Appeal in Ahamad Abolfathi Mohammed & Another v Republic (Supra). 9. A perusal of the Charge Sheet herein indicated that the Applicant was arrested on 26th May 2022. Although he was granted bond, he did not seem to have posted the same. He was sentenced on 23rd May 2023. A perusal of the Trial Court’s proceedings indicated that the Trial court did not consider the said period while it was sentencing him. It was, therefore, this court’s view that that was a period that ought to be taken into account while computing his sentence. Disposition 10. For the foregoing reasons, the upshot of this court’s decision was that the Applicant’s Notice of Motion application dated 12th July 2023 and filed on 13th March 2024 was merited and the same be and is hereby allowed. However, his conviction and sentence remained undisturbed as they were both safe. 11. For the avoidance of doubt, the period that the Applicant spent in custody between 26th May 2022 and 22nd May 2023 be and is hereby taken into account while computing his sentence in accordance with Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya). 12. It is so ordered. DATED AND DELIVERED AT VIHIGA THIS 26TH DAY OF JANUARY 2026 J. KAMAU JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/665/eng@2026-01-26 2
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