Abuga v Republic (Criminal Miscellaneous Application E031 of 2024) [2026] KEHC 6670 (KLR) (29 April 2026) (Ruling) Neutral citation: [2026] KEHC 6670 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT NYAMIRA CRIMINAL MISCELLANEOUS APPLICATION E031 OF 2024 TW CHERERE, J APRIL 29, 2026 BETWEEN BONIFACE KENYASA ABUGA ............................................................. APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT RULING 1. The Applicant has moved this Court by way of an undated Notice of Motion seeking revision of sentence imposed in Keroka Criminal Case No. 766 of 2018, in which he was convicted of robbery with violence contrary to Section 296(2) of the Penal Code and sentenced to ten (10) years’ imprisonment. 2. The Applicant’s grievance is that the period he spent in custody prior to conviction was not taken into account as required under Section 333(2) of the Criminal Procedure Code. 3. The jurisdiction of this Court under Sections 362 and 364 of the Criminal Procedure Code is limited to examining the correctness, legality, and propriety of the sentence. 4. The Applicant was convicted of robbery with violence under Section 296(2) of the Penal Code, which provides as follows: “ If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes, or uses any other personal violence to any person, he shall be sentenced to death.” 7. The above provision prescribes a specific sentence upon conviction. The trial court, however, imposed a sentence of ten (10) years’ imprisonment, which is not a sentence provided for under the law. The sentence was therefore irregular, albeit manifestly lenient in favour of the Applicant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6670/eng@2026-04-29 1
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7. The Applicant now seeks to invoke Section 333(2) of the Criminal Procedure Code so that the period spent in custody may be taken into account in computing the sentence. While Section 333(2) obligates a court to take into account time spent in custody, that provision cannot be invoked to further reduce or adjust a sentence that is itself not sanctioned by law but operates to the benefit of the Applicant. The revisionary jurisdiction of this Court cannot be exercised to perpetuate or compound an illegality. To allow the application would be to further interfere with a sentence that is already below what the law prescribes. 7. In the circumstances, and notwithstanding the Applicant’s grounds, this Court finds that the sentence imposed, though irregularly lenient, cannot be interfered with in favour of the Applicant. 7. The application for revision of sentence is hereby declined. The sentence imposed by the trial court shall remain undisturbed. Top of Form DELIVERED AT NYAMIRA THIS 29TH DAY OF APRIL 2026 WAMAE.T. W. CHERERE JUDGE Appearances Court Assistant - Terere/Ruth Applicant - Absent For the DPP - Mr. Chirchir (SADPP) https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6670/eng@2026-04-29 2
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