REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISUMU MISC. CRIMINAL APPLICATION NO. E068 OF 2026 BENARD OLUOCH OTIENO………………………………….APPLICANT VERSUS REPUBLIC………………………….……………………….. ….RESPONDENT RULING 1. The Applicant herein, vide his undated notice of motion 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 during his trial, the Applicant remained remanded in custody for a cumulative period of 285 days, pending the conclusion of his trial, as he was never released on bond. He 1|Page
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was ultimately convicted on the charge of robbery with violence contrary to Section 296(2) of the Penal Code and thereafter sentenced to suffer death in line with the said provision of the law. 3. It is clear from the record of the trial court, which is before me, that the learned trial Magistrate did not address Section 333(2) of the Criminal Procedure Code, and rightfully so. 4. I am unable to fault the learned trial Magistrate for failing to expressly invoke or apply the proviso to Section 333(2) of the Criminal Procedure Code. At the time of sentencing, the Applicant had been convicted of the offence of robbery with violence contrary to Section 296(2) of the Penal Code and was sentenced to death, being the sentence prescribed by law. 5. Unlike a determinate custodial sentence, a sentence of death is not quantified in years, months or days against which the period spent in pre-sentence custody can be credited. The purpose of the proviso to Section 333(2) is to ensure that an offender serving a term of imprisonment does not remain in custody for a period exceeding that intended by the sentencing court. 6. That statutory objective could not be realized where the sentence imposed was death, since there existed neither a 2|Page
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legal nor a practical basis upon which the period spent in remand custody could be deducted. 7. Accordingly, the learned trial Magistrate was under no legal obligation to undertake an exercise that the law, in the circumstances then obtaining, did not contemplate. 8. It follows that the failure to expressly consider Section 333(2) of the Criminal Procedure Code did not constitute an error of law or an omission warranting interference by this Court. 9. But then, from the material on record, it emerges that the Applicant appealed against his conviction and sentence in Kisumu High Court Criminal Appeal No. 69 of 2019. By a judgement delivered on 30th September, 2020, the appellate court allowed the appeal in part by setting aside the sentence of death and substituting it with a custodial sentence of 25 years imprisonment. 10. The Applicant now contends that although the appellate court partially allowed his appeal by setting aside the sentence of death and substituting it with a sentence of 25 years imprisonment, the learned Judge omitted to take into account the 285 days that the Applicant had spent in remand custody before his conviction, contrary to the requirements of Section 333(2) of the Criminal Procedure Code. He therefore prays that the court allows his motion. 3|Page
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11. In his quest, the Applicant has relied on the Court of Appeal in Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR, where it was held: ““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 state that it has taken into account the period already spent in custody…”. 12. 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.” 13. While I fully agree with the Applicant that Section 333(2) of the Criminal Procedure Code imposes a mandatory obligation upon a sentencing court to take into account the period spent in lawful custody before sentence is passed, that obligation 4|Page
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must be understood within the context of the sentence that is being imposed by the court exercising the sentencing jurisdiction. 14. In the present case, it was not the trial court, but the High Court sitting on appeal in Kisumu High Court Criminal Appeal No. 69 of 2019, that ultimately imposed the operative sentence of 25 years imprisonment after setting aside the death sentence. 15. It is that appellate sentence that the Applicant now seeks to have revisited by inviting this court to deduct the 285 days spent in remand custody. The Applicant’s complaint is therefore directed, not against the sentence of the trial court, but against the sentence imposed by a court of concurrent jurisdiction. 16. With tremendous respect to the Applicant, this court lacks the jurisdiction to grant the orders sought. The supervisory and revisionary jurisdiction of the High Court under Sections 362 and 364 of the Criminal Procedure Code is expressly confined to examining the correctness, legality or propriety of the findings, sentences or orders of subordinate courts. 17. Those provisions do not confer upon one Judge of the High Court the power to review, revise, vary or otherwise interfere 5|Page
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with a sentence imposed by another Judge of the High Court in the exercise of the court’s appellate jurisdiction. 18. To hold otherwise would result in one Judge sitting on appeal or in revision over the decision of another Judge of the same court, a course wholly inconsistent with the hierarchical structure of the judicial system and the principle of judicial comity. 19. Assuming, without so finding, that the learned appellate Judge erred in failing to comply with Section 333(2) of the Criminal Procedure Code, such an error is amenable only to correction by a court of competent appellate jurisdiction. It is not one that may be remedied through the revisionary jurisdiction of another Judge of the High Court. 20. The proper remedy available to the Applicant therefore lay in invoking the appellate jurisdiction of the Court of Appeal by way of a second appeal on sentence, where the legality and propriety of the sentence imposed by the High Court could lawfully be interrogated. 21. This Court cannot assume a jurisdiction that neither the Constitution nor the Criminal Procedure Code has conferred upon it. 22. In the premises, I find that although the Applicant’s complaint regarding the application of Section 333(2) of the 6|Page
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Criminal Procedure Code is one that may have arisen upon the substitution of the death sentence with a determinate custodial sentence, this court is bereft of jurisdiction to revisit or alter the sentence imposed by the High Court in Criminal Appeal No. 69 of 2019. 23. The Applicant’s notice of motion is therefore incompetent and devoid of merit. It is accordingly dismissed. 24. This file is closed. DELIVERED (virtually) DATED and SIGNED this 28th day of July, 2026. JOE M. OMIDO JUDGE APPLICANT: Present, virtually. RESPONDENT: Ms. Muema. COURT ASSISTANTS: Mr. Ngoge & Mr. Juma. 7|Page
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