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(Arising from Criminal Case No. E074 of 2022 at the Chief Magistrate’s Court at Mombasa – Hon. D. Odhiambo, SRM)
1. The home made application drafted by the applicant in person was brought Under Section 364(1)(b) of the Criminal Procedure Code) and The Applicant seeks the following orders:
a. That the Applicant be granted leave to file and prosecute an application for the computation of the pre-conviction custody period pursuant to Section 333(2) of the Criminal Procedure Code.
b. That the Court be pleased to make such further or other orders as it may deem fit and just in the circumstances.
He filed some written submissions.
1. Background
1. The Applicant was arrested on 14th May 2022, charged with two charges.
Count 1 was Attempted Defilement in which he was convicted, and sentenced to ten (10) years’ imprisonment on 11th June 2024 in S.O. Case No. E074 of 2022 before Hon. D. Odhiambo, SRM.
2. Count II was Cruelty to a Child contrary to Section 127(1)(a) of the Children’s Act No. 8 of 2008. He was discharged under section 35 0f the penal code.
3. The Applicant did not appeal the conviction. His only grievance is that the pre-conviction custody period of approximately two (2) years and one (1) month which he states was not factored into the sentence.
4. The custody period in question runs from 14th May 2022 (arrest) to 11th June 2024 (conviction).
Legal Foundation
Section 362 of the Criminal Procedure Code empowers the High Court to review criminal proceedings to satisfy itself as to the correctness, legality, or propriety of any finding, sentence, or order.
Section 333(2) of the Criminal Procedure Code provides that:
“…where a person sentenced has, prior to such sentence, been held in custody, the sentence shall take into account the period spent in custody.”
Paragraphs 7.10 and 7.11 of the Kenya Judiciary Sentencing Policy Guidelines affirm the mandatory nature of this requirement. Failure to credit pre-trial custody results in a disproportionate and excessive sentence.
3. Application of the Law
1. The trial court’s decision must be evaluated in light of whether it took into account the period spent in custody.
2. The Applicant asserts that this period was ignored, thereby resulting in a sentence that is allegedly unlawful or excessive.
3. The High Court, in exercise of its revisionary jurisdiction, must determine whether the sentencing court complied with Section 333(2).
4. Prayer:The Applicant humbly prays that the Honourable Court:
a) Reviews and revises the sentence in Criminal Case No. E074 of 2022 to take into account the pre-conviction custody period from 14th May 2022 to 11th June 2024, pursuant to Section 333(2) of the Criminal Procedure Code.
b) Issues such further or other orders as the Court may deem fit and just.
5. Conclusion;
The court called for and examined the trial courtd record for any illegality, irregularity or impropriety and in particular in the sentencing.
Upon a thorough examination of the sentencing notes, it is evident that during mitigation the Applicant specifically requested the trial court to consider the period he had spent in custody.
The record further confirms the following notes:
- Count I – Attempted Defilement:
The Applicant was sentenced to ten (10) years’ imprisonment.
- Count II – Cruelty to a Child contrary to Section 127(1)(a) of the Children’s Act No. 8 of 2008:
The Applicant was discharged under Section 35 of the Penal Code, and the discharge was expressly granted on account of the time already spent in custody.
This demonstrates that the trial court did consider the pre-conviction custody period as required under Section 333(2).
IT would appear that the Applicant was either unaware or he ignored the second count.
Accordingly, the Court finds no merit in the application, and the same is hereby dismissed.
it is so ordered.
Dated, signed and delivered in Open Court/online through MS TEAMS ,
this 14 th day of NOVEMBER 2025
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of: -
THE APPLICANT IN PERSON
MR NGIRI FOR THE STATE
BEBORA COURT ASSISTANT
HON. LADY JUSTICE W. K. MICHENI
JUDGE
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(Arising from Criminal Case No. E074 of 2022 at the Chief Magistrate’s Court at Mombasa – Hon. D. Odhiambo, SRM)
1. The home made application drafted by the applicant in person was brought Under Section 364(1)(b) of the Criminal Procedure Code) and The Applicant seeks the following orders:
a. That the Applicant be granted leave to file and prosecute an application for the computation of the pre-conviction custody period pursuant to Section 333(2) of the Criminal Procedure Code.
b. That the Court be pleased to make such further or other orders as it may deem fit and just in the circumstances.
He filed some written submissions.
1. Background
1. The Applicant was arrested on 14th May 2022, charged with two charges.
Count 1 was Attempted Defilement in which he was convicted, and sentenced to ten (10) years’ imprisonment on 11th June 2024 in S.O. Case No. E074 of 2022 before Hon. D. Odhiambo, SRM.
2. Count II was Cruelty to a Child contrary to Section 127(1)(a) of the Children’s Act No. 8 of 2008. He was discharged under section 35 0f the penal code.
3. The Applicant did not appeal the conviction. His only grievance is that the pre-conviction custody period of approximately two (2) years and one (1) month which he states was not factored into the sentence.
4. The custody period in question runs from 14th May 2022 (arrest) to 11th June 2024 (conviction).
Legal Foundation
Section 362 of the Criminal Procedure Code empowers the High Court to review criminal proceedings to satisfy itself as to the correctness, legality, or propriety of any finding, sentence, or order.
Section 333(2) of the Criminal Procedure Code provides that:
“…where a person sentenced has, prior to such sentence, been held in custody, the sentence shall take into account the period spent in custody.”
Paragraphs 7.10 and 7.11 of the Kenya Judiciary Sentencing Policy Guidelines affirm the mandatory nature of this requirement. Failure to credit pre-trial custody results in a disproportionate and excessive sentence.
3. Application of the Law
1. The trial court’s decision must be evaluated in light of whether it took into account the period spent in custody.
2. The Applicant asserts that this period was ignored, thereby resulting in a sentence that is allegedly unlawful or excessive.
3. The High Court, in exercise of its revisionary jurisdiction, must determine whether the sentencing court complied with Section 333(2).
4. Prayer:The Applicant humbly prays that the Honourable Court:
a) Reviews and revises the sentence in Criminal Case No. E074 of 2022 to take into account the pre-conviction custody period from 14th May 2022 to 11th June 2024, pursuant to Section 333(2) of the Criminal Procedure Code.
b) Issues such further or other orders as the Court may deem fit and just.
5. Conclusion;
The court called for and examined the trial courtd record for any illegality, irregularity or impropriety and in particular in the sentencing.
Upon a thorough examination of the sentencing notes, it is evident that during mitigation the Applicant specifically requested the trial court to consider the period he had spent in custody.
The record further confirms the following notes:
- Count I – Attempted Defilement:
The Applicant was sentenced to ten (10) years’ imprisonment.
- Count II – Cruelty to a Child contrary to Section 127(1)(a) of the Children’s Act No. 8 of 2008:
The Applicant was discharged under Section 35 of the Penal Code, and the discharge was expressly granted on account of the time already spent in custody.
This demonstrates that the trial court did consider the pre-conviction custody period as required under Section 333(2).
IT would appear that the Applicant was either unaware or he ignored the second count.
Accordingly, the Court finds no merit in the application, and the same is hereby dismissed.
it is so ordered.
Dated, signed and delivered in Open Court/online through MS TEAMS ,
this 14 th day of NOVEMBER 2025
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of: -
THE APPLICANT IN PERSON
MR NGIRI FOR THE STATE
BEBORA COURT ASSISTANT
HON. LADY JUSTICE W. K. MICHENI
JUDGE
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