Kinaga v Republic (Criminal Revision E005 of 2026) [2026] KEHC 8788 (KLR) (22 June 2026) (Ruling) Neutral citation: [2026] KEHC 8788 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT HOMA BAY CRIMINAL REVISION E005 OF 2026 PJO OTIENO, J JUNE 22, 2026 BETWEEN KENNEDY OTIENO KINAGA .............................................................. APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT (Arising from decision of the Principal Magistrate Court at Oyugis in Sexual Offence No. 30 of 2021) RULING 1. The Applicant was initially, on the 28.02.2022, charged with the offence of murder contrary to section 203 as read with section 204 of the penal code. When arraigned in court, he pleaded not guilty and was admitted to bail pending trial. His bond terms were approved on the same day and he was released on 29.02.2022. 2. Parties thereafter engaged in plea negotiation and concluded a plea Agreement signed on the 27.06.2022 by both parties and witnessed by counsel for the accused. 3. Following that plea agreement, the murder charge was abandoned and substituted with one for manslaughter contrary to Section Section 203 as read with section 204 of the Penal Code, in Homa Bay HCCRC No. E006 of 2022. 4. The particulars of the charge were that on the 7th February, 2022, at Kabade Village, Wanyama Sublocation, Rusinga West Location, in Mbita Sub- County, within Homa Bay County, caused the death of Cynthia Akoth Otieno 5. As a term of the plea agreement, the applicant pleaded guilty to the charge on the 28.02.2022 and was accordingly convicted after the facts of the case were read out to him and he confirmed the truthfulness. He was then sentenced to serve seven (7) term in prison https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8788/eng@2026-06-22 1
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6. The Applicant never appealed against his conviction or sentence. Instead, he has approached this Court vide the present application, an undated notice of motion, seeking to be accorded the statutory benefits bestowed by section 333(2), Criminal Procedure Code. He contends that the period he served in remand custody be taken into account so as to proportionately reduce his jail term 7. The Respondent never opposed but conceded to the application and maintained that it is a right that if not granted at trial ought to be restored by the court. cannot benefit from any further reduction or lenient non-custodial options. Determination 8. The court has identified the sole issue for determination of this appeal to be whether the applicant is entitled to the relief sought. That question is best answered by asking the question whether the Applicant’s right under Section 333(2) of the Criminal Procedure Code was duly respected and protected. The said provision is both mandatory and obligatory command that where a person who is sentenced has been held in custody prior to such sentence, the sentence shall take account of the period spent in custody. 9. As established in Dennis Kimeu vs Republic [2017] eKLR, a sentencing court is legally obligated to compute and deduct the period an accused person spent in pre-trial custody from the final custodial term. Failure to do so constitutes a reversible error of law, as it effectively subjects the convict to a punishment harsher that that provided by statute or imposed by the court. 10. A review of the trial record in this case shows that the Applicant was arrested on 8th February, 2022 and was only released on bond on the 29th of the same month. The court calculates the period to amount to 22 days of remand custody. Under the law, that period must be reckoned with in calculating the period to be served. 11. The judge did not specify the commencement date for purposes of computation of the sentence thus leading to the inference that the same would run from the date of its pronouncement. Such application would have the obvious result that the applicant serves a period of the imposed sentence and an additional 22 days served prior to its imposition. That would be not only harsh and unjust but also contrary to statute. 12. Because the law commands, it is ordered that the Applicant imprisonment term of seven 7 years shall be reduced by the 22 days he served in remand custody. 13. The prison authorities are thus directed that in computing the term it shall give to the applicant a credit for 22 days served prior to sentence. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 22ND DAY OF JUNE, 2026 PATRICK J O OTIENO JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8788/eng@2026-06-22 2
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