Amwayi v Republic (Miscellaneous Criminal Application E116 of 2026) [2026] KEHC 10169 (KLR) (13 July 2026) (Ruling) Neutral citation: [2026] KEHC 10169 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT KIBERA MISCELLANEOUS CRIMINAL APPLICATION E116 OF 2026 DR KAVEDZA, J JULY 13, 2026 BETWEEN ANTONY AMWAYI ................................................................................. APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT RULING 1. The applicant was charged with and convicted of the ofience of attempted defilement contrary to section 9(1) as read with 9(2) of the Sexual Offences Act, No. 3 of 2006. He was sentenced to serve fifteen (15) years imprisonment. 2. The applicant has filed the present application dated 2nd June 2026 seeking sentence review. He contends that the trial court failed to consider the period spent in remand custody before sentencing, contrary to section 333(2) of the Criminal Procedure Code. He therefore urges the Court to revise the commencement date of his sentence. 3. I have considered the application, the grounds advanced, the record and the applicable law. 4. The proviso to section 333(2) of the Criminal Procedure Code imposes a mandatory duty on a sentencing court to consider the period an accused person has spent in lawful custody before sentence. This principle has been afirmed by the Court of Appeal in Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR and Bethwel Wilson Kibor v Republic [2009] eKLR, and by the High Court in Vincent Sila Jona & 87 Others v Kenya Prison Service & 2 Others [2021] eKLR. 5. It is therefore mandatory upon every sentencing court to consider the period spent in pre-trial custody unless the law expressly provides otherwise. 6. The record shows that the applicant was arrested on 15th April 2017 and remained in custody throughout the trial until his conviction on 15th May 2019, having never been released on bond or bail. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10169/eng@2026-07-13 1
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I have examined the original trial court record and find no indication that the learned trial magistrate took the period spent in remand custody into account when passing sentence. The omission warrants this Court's intervention under section 333(2) of the Criminal Procedure Code. 7. Consequently, the application is merited and is hereby allowed. The sentence imposed by the trial court shall run from 15th April 2017, being the date of the applicant's arrest, in accordance with section 333(2) of the Criminal Procedure Code, Cap. 75, Laws of Kenya. Orders accordingly. RULING DATED AND DELIVERED VIRTUALLY THIS 13TH DAY OF JULY 2026. __________________ D. KAVEDZA JUDGE In the presence of: Applicant Present Mutuma for the Respondent Karimi Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10169/eng@2026-07-13 2
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