Mwai v Republic (Criminal Revision E030 of 2026) [2026] KEHC 7070 (KLR) (20 May 2026) (Ruling) Neutral citation: [2026] KEHC 7070 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT KIBERA CRIMINAL REVISION E030 OF 2026 DR KAVEDZA, J MAY 20, 2026 BETWEEN KELVIN KANGETHE MWAI ................................................................. APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT RULING 1. The applicant was charged and convicted for the ofience of being in possession of narcotic drugs contrary to section 3(1) as read with section 3(2)(a) if the Narcotic Drugs and Psychotropic Substances (Control) Act, No. 3 of 1994. He was sentenced pay a fine of Kshs. 100,000 in default to serve one years imprisonment in addition to a custodial sentence of nine (9) months imprisonment. 2. He has filed the present undated application received on 26th March 2026 seeking sentence review. The grounds raised in support of the application are that the trial court and this court failed to consider the time spent in remand custody during the computation of his sentence. 3. I have considered the application, the affidavit in support and the applicable law. I have also considered the trial court record. The issue for consideration is whether the trial court considered the time the applicant spent in remand custody. 4. The proviso to section 333 (2) of the Criminal Procedure Code obligates the court to consider the time already spent in custody. The duty to take in account the period an accused person had remained in custody in sentencing under the proviso to section 333(2) of the Criminal Procedure Code which is couched in mandatory terms was acknowledged by the Court of Appeal in Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR and Bethwel Wilson Kibor v Republic [2009] eKLR and more recently in the High Court case of Vincent Sila Jona & 87 others v Kenya Prison Service & 2 others [2021] eKLR. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7070/eng@2026-05-20 1
page 1 of 2
5. It is therefore clear that it is mandatory that the period which an accused has been held in custody prior to being sentenced be taken into account. 6. From the record, the applicant was arrested on 30th November 2024, took plea on 5th December 2024, and was admitted to cash bail of Kshs. 200,000. He remained out on bail until his conviction and sentence. Accordingly, he did not spend any time in remand custody during the trial, as alleged. 7. In the premises, the application is found to be lacking in merit and is dismissed. Orders accordingly. RULING DATED AND DELIVERED VIRTUALLY THIS 20TH DAY OF MAY, 2026. .............................. D. KAVEDZA JUDGE In the presence of: Applicant - Present Mutuma for the Respondent. Toni - Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7070/eng@2026-05-20 2
page 2 of 2