Ismael Onyango Okwata v Republic

Okwata v Republic (Criminal Miscellaneous Application E215 of 2025) [2026] KEHC 11962 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KEHC 11962 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT KISUMU CRIMINAL MISCELLANEOUS APPLICATION E215 OF 2025 A MABEYA, J JULY 31, 2026 BETWEEN ISMAEL ONYANGO OKWATA ............................................................. APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT RULING 1. Ismael Onyango Okwata (‘the applicant’) was on 25/7/2025 convicted of the ofience of defilement of a minor. The ofience was read to be contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act. 2. He was sentenced to serve 10 years imprisonment. He did not appeal the conviction and sentence. 3. Against this background, the applicant took out a Motion on Notice dated 29/8/2025 seeking that the duration he spent in custody pursuant to section 333(2) of the Criminal Procedure Code be taken into account and the sentence be reduced accordingly. 4. 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.” 5. I have considered the record of the trial court and the Committal Warrant. The trial court did not comply with section 333(2) of the Criminal Procedure Code. It never took into consideration the period the applicant was in custody. That period is between 9/8/2021 and 24/7/2025 a period of 341 days. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11962/eng@2026-07-31 1

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