Kisakwa & 3 others v Republic & another (Criminal Revision E001 of 2025 & Miscellaneous Criminal Application E079 of 2024 (Consolidated)) [2026] KEHC 4229 (KLR) (11 February 2026) (Ruling) Neutral citation: [2026] KEHC 4229 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT HOMA BAY CRIMINAL REVISION E001 OF 2025 & MISCELLANEOUS CRIMINAL APPLICATION E079 OF 2024 (CONSOLIDATED) PJO OTIENO, J FEBRUARY 11, 2026 BETWEEN KENNEDY OCHIENG KISAKWA .................................................. 1ST APPLICANT WYCLIFFE OTIENO ONYANGO & ANOTHER ......................... 2ND APPLICANT GABRIEL OTIENO ONYANGO ...................................................... 3RD APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT AS CONSOLIDATED WITH MISCELLANEOUS CRIMINAL APPLICATION E079 OF 2024 BETWEEN PIUS OWINO OGINGA .......................................................................... APPLICANT AND REPUBLIC ................................................................................................. APPLICANT RULING 1. The court has read the application in line with the record of HC CR C No. 9 of 2012. It is clear that the applicants were sentenced to suffer death by the trial judge. 2. An appeal to the court of appeal confirmed conviction but reduced the sentence to jail term of 20 years. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4229/eng@2026-02-11 1
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3. After meting out that term, the court of appeal directed that the sentence be computed from the date the applicants were first sentenced. 4. The applicants now make a very straight forward request, that the time spent in remand custody be applied to proportionately reduce their jail terms. The prosecution did not object to the application but conceded to the request as lawful and legal 5. That section 333(2) Criminal Procedure Code is compulsive rather than directionary was settled by the court of Appeal in Ahmed Abottathi Mohammend & Another – vs – Republic when the court said; “ The appellants have been in custody from the date of their arrest on 19th June 2012. By dint of section 333(2) of the Criminal Procedure Code, the court was obliged to take into account the period that they had spent in custody before they were sentenced. Although the learned judge stated that he had taken into account the period the appellants had been in custody, he ordered that their sentence shall take effect from the date of their conviction by the trial court. With respect, there is no evidence that the court took into account the period already spent by the appellants in custody. "Taking into account" the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody. It is not enough for the court to merely state that it has taken into account the period already spent in custody and still order the sentence to run from the date of the conviction because that amounts to ignoring altogether the period already spent in custody. It must be remembered that the proviso to section 333(s) of the Criminal Procedure Code was introduced in 2007 to give the court power to include the period already spent in custody in the sentence that it metes out to the accused person. We find that the first appellate court misdirected itself in that respect and should have directed the appellants' sentence of imprisonment to run from the date of their arrest on 19th June 2012.” 6. Arising from that authority now accepted as the law on enforcement of section 333(2) Criminal Procedure Code, the court finds that it is only just, lawful and constitutional Under Article 50 (2) P, that the sentence of 20 years jail term be made to commence on the 22/5/2012 the day the applicants were all arrested and placed in custody pending trial. 7. It is so ordered. DATED, SIGNED AND DELIVERED THIS 11TH DAY OF FEBRUARY, 2026. PATRICK J O OTIENO JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4229/eng@2026-02-11 2
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