Kigen v Republic (Criminal Miscellaneous Application E163 of 2025) [2026] KEHC 12629 (KLR) (11 June 2026) (Ruling) Neutral citation: [2026] KEHC 12629 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT MOMBASA CRIMINAL MISCELLANEOUS APPLICATION E163 OF 2025 PK ROTICH, J JUNE 11, 2026 BETWEEN BENJAMIN KIBET KIGEN .................................................................... APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT RULING 1. The applicant was convicted for the ofience of committing an indecent act contrary to section 11(1) Sexual Offences Act No.3 of 2006 at the Mombasa Chief Magistrate’s Court in Criminal Case No.SO 069 of 2013 on 5th March,2023 and sentenced to serve 10 years imprisonment. In this application, the applicant prays the time he had already spent in Custody before conviction be factored his sentence pursuant to the provisions of section 333(2) of the Criminal Procedure Code. 2. Article 165(6) and (7) of the Constitution provides for supervisory jurisdiction of the High Court over subordinate courts. Article 165(6) provides: “ The High Court has supervisory jurisdiction over the subordinate courts and over any person, body, or authority exercising a judicial or quasi-judicial function, but not over a superior court. 165(7) provides: “ For the purpose of clause 6, the High Court may call for the record of any proceeding before any subordinate court or person, body or authority referred to in clause 6 and may make an order or give any direction to ensure fair administration of justice. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12629/eng@2026-06-11 1
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3. Section 362(1) of the Criminal Procedure Code provides that: “ The High Court may call for and examine a record for any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness legality or propriety of any finding, sentence or order recorded or passed and as to the legality of any proceedings of such subordinate court” 4. Further, section 364 of Code provides inter alia that: “ In the case of proceedings in a subordinate court the record which had been called for of which has been reported for orders or which came to the knowledge of the High Court may- 5. a. In the case of conviction, exercise any powers conferred on it as a court of appeal by section 354, 357 and 358 and may enhance sentence b. In the case of any other order other than acquittal, alter or reverse the order….” The issue for determination is whether there is any valid reason for review of the lower court’s sentence herein by this Court. It is very clear from the lower court’s record that the period the applicant spent in custody was in was not factored in his sentence as provided under section 333(2) of the Criminal Procedure Code. It is, therefore, my finding the sentence meted on the accused unlawful and improper. Consequently, the sentence meted on the applicant is reviewed to the extent that period he was in custody is deducted his 10 years imprisonment. DATED, SIGNED AND VIRTUALLY DELIVERED VIA MICROSOFT TEAMS THIS 11TH DAY OF JUNE 2026. HON. P.K. ROTICH JUDGE In the presence of: The accused in person Mr. Sirima for DPP https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12629/eng@2026-06-11 2
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