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Original judgment

Wycliffe Ong’ondo Sambaya v Republic

Sambaya v Republic (Criminal Revision E111 of 2026) [2026] KEHC 11222 (KLR) (22 July 2026) (Ruling) Neutral citation: [2026] KEHC 11222 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT KIBERA CRIMINAL REVISION E111 OF 2026 DR KAVEDZA, J JULY 22, 2026 BETWEEN WYCLIFFE ONG’ONDO SAMBAYA ..................................................... APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT RULING 1. The applicant was charged with and convicted for the ofience of defilement contrary to section 8(1) as read with 8(3) of the Sexual Offences Act, No. 3 of 2006. He was sentenced to serve twenty (20) years imprisonment. 2. The applicant has filed the present application 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 mandatory for every sentencing court to take into account the period an accused has spent in pretrial custody, unless the law expressly provides otherwise. 6. The record shows that the applicant was arrested on 28th May 2022 and remained in custody throughout the trial, having never been released on bond or bail. I have examined the original trial court https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11222/eng@2026-07-22 1

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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 28th May 2022, 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 22ND 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/2026/11222/eng@2026-07-22 2

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