REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISUMU MISC. CRIMINAL APPLICATION NO. E059 OF 2026 KENNEDY ODHIAMBO OWITI……………………………..APPLICANT VERSUS REPUBLIC………………………….……………………….. ….RESPONDENT RULING 1. The Applicant herein, vide the notice of motion dated 8 th May, 2026 seeks an order for the review of his sentence, so that the period that he spent in custody awaiting conclusion of his trial is taken into account, in line with Section 333(2) of the Criminal Procedure Code, Cap 75 Laws of Kenya, which provides that: 333(2) 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. 2. I have gone through the record of the lower court and note that throughout his trial, the Applicant remained remanded in custody, as he was never released on bond, for a cumulative 1|Page
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period of 389 days. He was ultimately convicted and thereafter sentenced on 7th April, 2026 to serve 4 years imprisonment. 3. It is clear from the record of the trial court, which is before me, that the period that the Applicant remained in custody while her trial proceeded was not properly taken into account by the trial court, as provided for under Section 333(2) of the Criminal Procedure Code. 4. In sentencing him, the trial court rendered itself as follows, in part: “…….I have considered the said (presentence) report as well as the mitigation by the accused and, taking into account the period spent by the accused person in remand custody, I sentence the accused person to serve 2 years in jail, each, on counts 2, 3, 4, 5 and 6 and since the offences were committed in the same transaction, the sentences shall run concurrently,” 5. The Court of Appeal in Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR held that: ““Taking into account” the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody. It is not enough for the court to merely 2|Page
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state that it has taken into account the period already spent in custody…”. 6. The Judiciary Sentencing Policy Guidelines provides that: “The proviso to section 333(2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody if the convicted person had been in custody during the trial. Failure to do so impacts on the overall period of detention which may result in an excessive punishment that is not proportional to the offence committed. In determining the period of imprisonment that should be served by an offender, the court must take into account the period in which the offender was held in custody during the trial.” 7. From the authority and the text above, it was not sufficient for the trial court to merely state that he had taken into account the period that the Applicant had been in custody. The learned trial was under the obligation to reduce the sentence proportionately by an equal period. The trial court should have ordered that the period of 389 days be reduced from the sentence. 8. In the result, and considering the foregoing, the Applicant’s application is merited. I allow it and review the sentence only to the extent that the sentence of 4 years imprisonment shall 3|Page
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run from 14th March, 2025. The committal warrant shall be amended accordingly. 9. This file is closed. DELIVERED (virtually) DATED and SIGNED this 21st day of July, 2026. JOE M. OMIDO JUDGE APPLICANT: Present, virtually. RESPONDENT: Ms. Muema. COURT ASSISTANTS: Mr. Ngoge & Mr. Juma. 4|Page
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