Dorcus v Republic (Criminal Miscellaneous Application E037 of 2025) [2026] KEHC 4302 (KLR) (26 January 2026) (Ruling) Neutral citation: [2026] KEHC 4302 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT KITUI CRIMINAL MISCELLANEOUS APPLICATION E037 OF 2025 LW GITARI, J JANUARY 26, 2026 BETWEEN PETER KIMANZI DORCUS ...................................................................... ACCUSED AND REPUBLIC ............................................................................................ RESPONDENT RULING 1. In the undated Petition filed in court on 18/11/2025, the applicant seeks an order that the time spent in remands awaiting trial be considered as provided under Section 333(1) & (2) of the Criminal Procedure Code. The state did not oppose the application. 2. I have perused the lower court record in Sexual Ofience Case No. E045/2021 where the appellant was charged with attempted defilement contrary to Section (1) (2) of the Sexual Offences Act, No. 3/2006. The appellant denied the charge and a full trial was conducted. 3. The appellant was found guilty, convicted and sentenced to serve seven (7) years imprisonment. The record shows that the accused was in prison throughout the trial. The learned magistrate did not comply with the mandatory requirement under Section 333(2) of the Criminal Procedure Code which requires that the trial court takes into account the time spent in custody awaiting trial. 4. In the case of Ahamad Abolfathi Mohamed & Another v Republic, Criminal Appeal NO. 135/2016 (2018) KLR, while interpreting Section 333(2) of the Criminal Procedure Code, held that taking into account means taking the time spent in custody awaiting trial to reduce the sentence imposed at the time of sentencing. 5. The trial court is therefore supposed to reduce the sentence imposed with the time already spent in custody. This is important to ensure that the accused person does not end up serving a longer sentence than that imposed at the end of the trial. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4302/eng@2026-01-26 1
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6. I note that the learned magistrate did not consider the time spent in the pre-trial custody at the time of passing the sentence. The application by the applicant is merited. The record shows that he was in custody as from 2/11/2021 to 31/05/2023. The learned magistrate should have taken this period into account when passing sentence and since he did not, I order that the sentence imposed should run form 2/11/2021 the date he was remanded in custody to await the trial. 7. The Deputy Registrar to issue and serve an Amended Committal Warrant to the Officer In-charge of the prison where the applicant is serving sentence and serve the order together with the Committal Warrant. DATED, SIGNED AND DELIVERED AT KITUI THIS 26TH DAY OF JANUARY, 2026. HON. LADY JUSTICE L. GITARI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4302/eng@2026-01-26 2
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