Gbassay v Republic (Criminal Revision E104 of 2026) [2026] KEHC 10381 (KLR) (13 July 2026) (Ruling) Neutral citation: [2026] KEHC 10381 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT KIBERA CRIMINAL REVISION E104 OF 2026 DR KAVEDZA, J JULY 13, 2026 BETWEEN ALICE BOIMA GBASSAY ....................................................................... APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT RULING 1. The applicant was charged with and convicted of the ofience of traficking in narcotic drugs contrary to section 4(a)(ii) of the Narcotic Drugs and Psychotropic Substances (Control) Act, No. 4 of 1994. She was sentenced to six (6) years' imprisonment and to pay a fine of Kshs. 50,000,000, in default to serve an additional twelve (12) months' imprisonment. 2. The applicant has filed the present application seeking review of sentence. She contends that the trial court failed to consider the period she spent in remand custody before sentencing, contrary to section 333(2) of the Criminal Procedure Code. She therefore urges the Court to revise the commencement date of her 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 incumbent upon every sentencing court to consider the period spent in pre-trial custody unless the law expressly provides otherwise. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10381/eng@2026-07-13 1
page 1 of 2
6. The record shows that the applicant was arrested on 27th July 2024 and remained in custody throughout the trial until her conviction and sentence on 10th June 2025, having never been released on bond or bail. 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 27th July 2024, 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/2026/10381/eng@2026-07-13 2
page 2 of 2