Dishon Wafula Simiyu v Republic

Simiyu v Republic (Miscellaneous Criminal Application E190 of 2025) [2026] KEHC 3941 (KLR) (25 March 2026) (Ruling) Neutral citation: [2026] KEHC 3941 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT KISUMU MISCELLANEOUS CRIMINAL APPLICATION E190 OF 2025 A MABEYA, J MARCH 25, 2026 BETWEEN DISHON WAFULA SIMIYU ................................................................... APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT RULING 1. Dishon Wafula Simiyu (‘the applicant’) was charged with the ofience of defilement contrary to section 8(1) and 8(4) of the Sexual Offences Act. It was alleged that on 27th & 30th day of November 2020 at an unknown time at [Particulars Withheld] within [Particulars Withheld] sub-county, Kisumu County, the applicant intentionally and unlawfully caused his penis to penetrate the vagina of BHO, a child aged 17 years. 2. He was tried and found guilty. He was convicted of the ofience and was sentenced to 10 years’ imprisonment. 3. By an undated Motion on Notice lodged in Court, the applicant sought that the period he spent in custody during the trial be taken into consideration in the calculation of his sentence. 4. It is clear that section 333(2) of the Criminal Procedure Code requires that the trial court does take into consideration the period an accused has spent in custody when meting out its sentence. That is the preserve of the trial court. 5. In the present case, the appellant was arrested on the 1/12/2020 and from the record granted bond which was approved on the 20/5/2021. This is a period of 5 months and 19 days which the applicant spent in custody. 6. Accordingly, the undated application is found to have merit. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3941/eng@2026-03-25 1

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