Otieno v Republic (Miscellaneous Criminal Application E075 of 2026) [2026] KEHC 9560 (KLR) (2 July 2026) (Ruling) Neutral citation: [2026] KEHC 9560 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT KIBERA MISCELLANEOUS CRIMINAL APPLICATION E075 OF 2026 DR KAVEDZA, J JULY 2, 2026 BETWEEN PAUL OCHIENG OTIENO ..................................................................... APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT RULING 1. The applicant herein was charged and, after a full trial, convicted for the offence of Traficking in Narcotic Drugs Contrary to Section 4 (a) Narcotic Drugs and Psychotropic Substances (Control) Act No.4 of 1994, as amended by Narcotic Drugs and Psychotropic Substances (Control) Act 2022. He was sentenced to serve twenty-one years' imprisonment and pay a fine of thirty-three million one hundred and sixty-five thousand, in default to serve one year imprisonment. 2. The applicant filed the present application dated seeking sentence review. The ground raised is that the court failed to consider the time spent in custody. He urged the court to release him. 3. The proviso to section 333 (2) of the Criminal Procedure Code obligates the court to take into account 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 vs. Republic [2018] eKLR and Bethwel Wilson Kibor vs. Republic [2009] eKLR and more recently in the High Court case of Vincent Sila Jona & 87 others vs Kenya Prison Service & 2 others [2021] eKLR. 4. 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 in meting out the sentence where it is not hindered by other provisions of the law. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9560/eng@2026-07-02 1
page 1 of 2
5. I have considered the application, the grounds advanced in support, the record of the trial court and the applicable law. The record shows that, before passing sentence, the trial court considered the Applicant's mitigation, the period spent in remand custody, and the fact that he was a first offender. The sentence imposed was lawful and proportionate to the offence and the circumstances of the case. 6. In my view of the foregoing, I find no good cause or reason to revise the sentence imposed by the trial court. The application is dismissed for lacking in merit. RULING DATED AND DELIVERED VIRTUALLY THIS 2ND DAY OF JULY 2026 D. KAVEDZA JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9560/eng@2026-07-02 2
page 2 of 2