Eliakim Eshikhati Otuma Alias Omwami v Republic

Otuma alias Omwami v Republic (Criminal Miscellaneous Application E023 of 2026) [2026] KEHC 11963 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KEHC 11963 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT KISUMU CRIMINAL MISCELLANEOUS APPLICATION E023 OF 2026 A MABEYA, J JULY 31, 2026 BETWEEN ELIAKIM ESHIKHATI OTUMA ALIAS OMWAMI ............................ APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT RULING 1. Eliakim Eshikhati Otuma alias Omwami (‘the applicant’) was on 28/8/2024 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 25 years imprisonment. He did not appeal against either the conviction or the sentence. 3. Against this background, he took out a Motion on Notice dated 17/1/2026 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. The record of the trial court shows that the trial court did not comply with the above provision. The applicant was tried while in custody. That period is between 24/4/2024 and 28/8/2024, a period of 120 days. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11963/eng@2026-07-31 1

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