Otieno v Republic (Criminal Miscellaneous Application E217 of 2025) [2026] KEHC 9604 (KLR) (3 July 2026) (Ruling) Neutral citation: [2026] KEHC 9604 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT KISUMU CRIMINAL MISCELLANEOUS APPLICATION E217 OF 2025 A MABEYA, J JULY 3, 2026 BETWEEN DAVID OCHIENG OTIENO .................................................................. APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT RULING 1. David Ochieng Otieno “the applicant” was charged before the Tamu Magistrate’s Court with four counts of obtaining money by false pretence. After trial, he was convicted and sentenced to 3 years’ imprisonment on each count on 10/12/2026. The sentence was to run concurrently. 2. By a Motion on Notice dated 23/12/2025, the applicant applied that the period of 11 months and 10 days which he spent in custody be considered in the calculation of his sentence. In his affidavit in support, he swore that he was in custody during trial between 20/12/2024 until 10/12/2025 when he was sentenced. He therefore prayed that the provisions of section 333(2) of the Criminal Procedure Code be applied to him accordingly. 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 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. From the foregoing, it is clear that once an accused has been convicted, the Court in sentencing him should take into consideration the time he spent in custody during trial. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9604/eng@2026-07-03 1
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5. In the present case, I have considered the record. The applicant was arrested and placed in custody on 20/12/2024. He remained in custody throughout his trial. In the warrant of commitment, it is clear that the Court did not consider and adhere to the provisions of section 333(2) of the Criminal Procedure Code. 6. Accordingly, the Motion dated 23/12/2025 is meritorious. The same is allowed. The sentence of 3 years on each count is to commence on 20/12/2025. The sentence is to run concurrently. It is so ordered. DATED AND DELIVERED AT KISUMU THIS 3RD DAY OF JULY, 2026. A. MABEYA, FCI Arb JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9604/eng@2026-07-03 2
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