Stanley Murigi Muriithi v Republic

applying section 333(2) of the Criminal Procedure Code. In his view, the time spent in lawful custody pending trial should be removed from the sentence imposed and it should be considered so that the sentence reduces to 6 years imprisonment. The foregoing notwithstanding, the applicant is hoping that the court would release him from prison altogether under the Probation of Offenders Act in a bid to decongest the prison facility. At the time of the application, he had 2 years and 10 months left on his sentence. Written Submissions 4. The application was canvassed by way of written submissions. 5. The applicant stated that the revisionary jurisdiction of this court and section 364-366 of the Criminal Procedure Code allows it to make a probation order under the Probation of Offenders Act. He relied on section 4 of the Probation of Offenders Act and the case of Joseph Bahati v Republic (2024) eKLR in support of the prayers made. He also relied on the objectives of sentencing as stated in the Judiciary Sentencing Policy Guidelines 2023. He argued that while in prison, he has exercised exemplary behavior, a fact that the prison officers endorse without reservation. He urged the court to set aside the remainder of the custodial sentence and set him free through a probation order. 6. The respondent referred to section 4(1) of the Probation of Offenders Act and submitted that a probation order can only be made by a subordinate court before conviction and by the High Court while exercising its original jurisdiction in a criminal case after conviction. It argued that in the present case, the case was tried by the subordinate court where the applicant was convicted and sentenced, hence it is too late to make a probation order. Issue for Determination 7. The issues for determination are: (a) whether the application has merit; and (b) whether section 333 (1) (2) applies to his sentence. Analysis and Determination 8. The applicant was charged with an offence that was tried in the subordinate court. Where a matter is tried before the trial court, a probation order may be made before or after conviction but before sentencing. Section 4(1) of the Probation of Offenders Act provides: “ Where a person is charged with an offence which is triable by a subordinate court, and the court thinks that the charge is proved but is of the opinion that, having regard to age, character, antecedents, home surroundings, health or mental condition of the offender, or to the nature of the offence, or to any extenuating circumstances in which the offence was committed, it is expedient to release the offender on probation, the court may— 9. (a) convict the offender and make a probation order; or (b) without proceeding to conviction, make a probation order, and in either case may require the offender to enter into a recognizance, with or without sureties, in such sum as the court may deem fit.” (Emphasis added) Clearly, section 4(1) above, provides that the factors for consideration for probation are to be taken into account before an offender is sentenced by the trial court. In this case, the applicant was sentenced https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3027/eng@2026-03-04 2

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and is serving the imprisonment term. Therefore, a probation order cannot be made at this stage, thus the provision does not apply. This Court held as aforesaid in the cases of Njue v Republic [2026] KEHC 564 (KLR) and Njagi v Republic [2026] KEHC 333 (KLR). 10. The applicant also raised the issue of section 333(2) of the Criminal Procedure Code and stated that time spent in custody was not considered during sentencing. From a perusal of the trial court proceedings, the applicant was sentenced to 6 years imprisonment after considering the mitigating factors in the case. However, in its ruling, the trial court failed to indicate whether it had considered time spent in lawful custody. This is a constitutional right of an accused person to fair hearing under Article 50 and it is enforced through section 333(2) of the Criminal Procedure Code which provides: “ 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 added) Conclusion and Disposition 11. The applicant herein was sentenced to 6 years imprisonment on 05th December 2023. Upon perusal of the trial court’s record and warrant of commitment, the time spent in lawful custody was not taken into account. The pre-sentence period since the time of arrest is a total of 375 days until the date of sentencing. This time must be considered and taken into account. 12. On the first issue, section 4 of the Probation of Offenders Act is inapplicable. 13. The application is allowed on the second issue. Accordingly, the 375 days spent in lawful custody should be considered in the 6-year imprisonment sentence. 14. Accordingly, it is ordered that the sentence of 6 years imprisonment is deemed to start on the date of arrest, that is, 16th November 2019. 15. Orders accordingly. DELIVERED, DATED AND SIGNED AT EMBU HIGH COURT THIS 04TH DAY OF MARCH, 2026. R. MWONGO JUDGE Delivered in the presence of: Applicant Present in Court Ms. Mwaniki for the Respondent Francis Munyao - Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3027/eng@2026-03-04 3

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