Opondo v Republic (Miscellaneous Criminal Case E112 of 2025) [2026] KEHC 6693 (KLR) (27 April 2026) (Ruling) Neutral citation: [2026] KEHC 6693 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT KAKAMEGA MISCELLANEOUS CRIMINAL CASE E112 OF 2025 AC BETT, J APRIL 27, 2026 BETWEEN JOHN OTIENO OPONDO ..................................................................... APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT RULING 1. The Applicant John Otieno Opondo was arraigned in court on 26th July 2021 where he was charged with robbery contrary to section 296 (1) of the Penal Code, rape contrary to section 3 (ii) (a) of the Sexual Offences Act, and the alternative charge of indecent act contrary to section 11A of the Sexual Offences Act. 2. Upon taking plea on 28th July 2021, the applicant was admitted to his own bond of Kshs. 150,000/ = with one surety of a similar amount. The applicant was unable to meet the terms of the bond and stayed in custody until 8th June 2022 when he sought and was granted review of the bond terms. Despite the review of the bond terms to Kshs. 100,000/=, the applicant continued to remain in custody throughout the proceedings. 3. On 8th November 2023, the learned trial Magistrate delivered a judgement in which she convicted the Applicant of the offences of stealing contrary to section 268 (1) of the Penal Code and rape contrary to section 3 (1) and (3) of the Sexual Offences Act. In respect to the first count, the Applicant was sentenced to two (2) years imprisonment while for the second count, he was sentenced to ten (10) years imprisonment. 4. By an application dated 3rd September 2025, the applicant prays that the two years and five months that he spent in remand custody during trial be taken into account in the sentence that he is currently serving. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6693/eng@2026-04-27 1
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5. Section 333 (2) of the Criminal Procedure Code enjoins the court to take into account the pre-trial detention period that an accused person was subjected to during the pendency of the case and provides that:“ 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.” 6. A review of the trial court proceedings reveals that the trial court only sentenced the Applicant to serve the two sentences, albeit concurrently, without putting into consideration the period the applicant spent in remand custody. 7. The failure to consider the time that an accused persons spent in custody while meting out a sentence is a substantive error in sentencing as it is expressly against the law. This amounts to a violation of the accused person’s constitutional right to a fair trial as anchored in article 50(2)(p) of the Constitution which guarantees every accused person to the right to the least severe punishment. 8. Where an accused person has spent a prolonged period in custody while awaiting trial and determination of his case, the time spent in custody should be credited to his sentence so that he does not end up serving a longer sentence than other convicts who are released on bond or enjoy their liberty during the pendency of the case as it is not the accused person’s fault that he is too poor to afford the bond terms issued by the court. 9. In the case of Ahamad Abolfathi Mohammed & Another v. Republic [2018] KECA 743 (KLR) the Court held that “taking into account” requires a substantive reduction of the sentence. 10. Flowing from the above, the court finds that the failure by the trial court to comply with the mandatory provisions of section 333 (1) is an error that requires the intervention of the court as contemplated by article 165 (6) and (7) of the Constitution. 11. The upshot is that the application has merit. The same is allowed and the sentence is reviewed to the extent that the same is deemed to have commenced from the 26th July 2021 when the applicant was remanded in custody by order of the trial court. 12. It is so ordered. DATED, SIGNED, AND DELIVERED AT KAKAMEGA, THIS 27TH DAY OF APRIL, 2026. A. C. BETT JUDGE In the presence of: Applicant virtually in prison. Ms. Chala for the Respondent. Court Assistant: Polycap. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6693/eng@2026-04-27 2
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