Ombongi v Director of Public Prosecutions (Criminal Miscellaneous Application E018 of 2025) [2026] KEHC 742 (KLR) (29 January 2026) (Ruling) Neutral citation: [2026] KEHC 742 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT NYAMIRA CRIMINAL MISCELLANEOUS APPLICATION E018 OF 2025 TW CHERERE, J JANUARY 29, 2026 BETWEEN PETER MOGUCHE OMBONGI ............................................................ APPLICANT AND DIRECTOR OF PUBLIC PROSECUTIONS .................................... RESPONDENT RULING 1. The applicant moved this Court by a Notice of Motion, supported by a supporting affidavit, both of which are undated, seeking an order that the sentence imposed upon him be ordered to run from the date of his arrest, namely 9th July 2016. 2. The application arises from Keroka Criminal Case No. 787 of 2016, in which the applicant was convicted on 6th March 2017 of the offence of defilement and sentenced to twenty (20) years’ imprisonment. The substance of the applicant’s case, as discerned from the supporting affidavit, is that although he was arrested and placed in custody on 9th July 2016, the trial court did not expressly take into account the period he spent in custody prior to his conviction and sentence. 3. The issue for determination is whether the applicant is entitled to have the period spent in custody between 9th July 2016 and 6th March 2017 taken into account in the computation of his sentence. The applicable law is section 333(2) of the Criminal Procedure Code, which obligates a sentencing court to take into account the period an accused person has spent in custody prior to sentence. 4. The Court of Appeal has consistently interpreted section 333(2) of the Criminal Procedure Code as imposing a mandatory duty upon the sentencing court. 5. In Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR, the Court held that failure to consider the remand period amounts to an error warranting correction. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/742/eng@2026-01-29 1
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6. In the present matter, the Court is satisfied, on the basis of the material placed before it, that the applicant was arrested on 9th July 2016, remained in custody until his conviction on 6th March 2017, and was thereafter sentenced to twenty (20) years’ imprisonment, and that the sentencing court did not expressly indicate that the period spent in custody was taken into account. 7. In the circumstances, and in order to give effect to the mandatory provisions of section 333(2) of the Criminal Procedure Code, this Court finds the application merited. 8. Accordingly, the Court hereby orders that the sentence of twenty (20) years’ imprisonment imposed upon the applicant shall run from the date of his arrest, being 9th July 2016. DELIVERED AT NYAMIRA THIS 29TH DAY OF JANUARY, 2026 WAMAE.T. W. CHERERE JUDGE Appearances Court Assistant - Terer Applicant - Present in person For the DPP - Mr. Chirchir (SADPP) https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/742/eng@2026-01-29 2
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