REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISUMU MISC. CRIMINAL APPLICATION NO. E069 OF 2026 VICTOR OTIENO NYAWARA………………………………… APPLICANT VERSUS REPUBLIC………………………….……………………….. ….RESPONDENT RULING 1. The Applicant herein, vide his notice of motion dated 18th 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 during his trial, the Applicant remained remanded in custody for a cumulative period of 147 days, pending the 1|Page
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conclusion of his trial, as he was never released on bond. He was ultimately convicted on the following charges: a. Count I: Setting fire to standing trees under cultivation contrary to Section 334(c) of the Penal Code. b. Count II: Threatening to kill contrary to Section 233(1) of the Penal Code. 3. The Appellant was thereafter sentenced to 5 years imprisonment on each of the two counts, with the court ordering that the sentences run concurrently. 4. It is clear from the record of the trial court, which is before me, that the period that the Applicant remained in custody while his trial proceeded was not properly taken into account by the trial court, as provided for under Section 333(2) of the Criminal Procedure Code. 5. In the case of Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR, the Court of Appeal 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 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 text above, the learned trial Magistrate was under the obligation to reduce the sentence proportionately by an equal period. The trial court should have ordered that the period of 147 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 sentences of 5 years imprisonment on each count shall be reduced by 147 days. The committal warrant shall be amended accordingly. 9. This file is closed. 3|Page
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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. 4|Page
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