REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISUMU CRIMINAL DIVISION MISC. CRIMINAL APPLN NO. E013 OF 2026 COLLINS ODHIAMBO .……………............................................. APPLICANT - VERSUS REPUBLIC ................................................................................... RESPONDENT RULING 1. COLLINS ODHIAMBO (‘the applicant’) was charged with the offence of defilement contrary to section 8(4) of the Sexual Ofences Act, No. 2 of 2006 before the Winam Principal Magistrates Court. After trial, he was found guilty, convicted and sentenced to 10 years’ imprisonment. 2. He never appealed against both the conviction and sentence. By a Motion on Notice dated 6/2/2026, he has sought for the review of his sentence by ordering that his sentence commence from the date of his arrest under the provisions of section 333(2) of the Criminal Procedure Code. 3. Section 333(2) of the Criminal Procedure Code provides: “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 Page 1 of 3
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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.” 4. It is clear from the foregoing that an accused is entitled to have the period he spent in custody during trial be considered during sentencing. If that is not considered, it is a proper ground for appeal. If the sentence is by the subordinate court, then an accused is entitled to either appeal to the High Court or seek review. 5. In the present case however, the applicant did not appeal. He was tried while in custody. He was arrested on 20/11/2024 and was in custody throughout the period of trial as the original record would show. This is so notwithstanding that he had been granted bond of Kshs.200,000/- which he seems not to have been able to raise. 6. In the circumstances, the trial court failed to apply the provisions of section 333(2) of the Criminal Procedure Code. 7. The application is allowed and the applicant’s sentence of 10 years is to commence on 20/11/2024 the date of arrest. Page 2 of 3
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It is so ordered. DATED and DELIVERED at Kisumu this 12th day of June, 2026. A. MABEYA, FCI Arb JUDGE Page 3 of 3
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