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JudgmentBRIAN MUTUKU KYALO VS ODPP2 min read

BRIAN MUTUKU KYALO VS ODPP

High Court at Makueni High Court · · Matheka, Teresia Mumbua


  1. The applicant was charged with stock theft contrary to section 278 of the Penal Code. Particulars   are  that  on the  25th  day  of August, 2023 at Kilome  sub-location, in Mukaa  subcounty within Makueni  County,  stole two  goats valued at Kshs. 13,000 the property  of  Jacinta Katiwa.  On Count II   he was  charged  with  stock  theft contrary to Section 278 of the Penal  Code.  Particulars  are  that on the  night of  28th August,  2023 at  Kavila  Village in Kilome  sub-location,  Mukaa subcounty within Makueni County, jointly with others  not  before  court  stole  two cows valued at Kshs. 87,000 the property  of Magdalena  Wayua John.
  2. He  was  arrested   on 29/8/2023.
  3. After a full trial, he was found guilty and convicted   on both main counts vide judgment of   13/5/2024. 
  4. The court noted that accused had similar offence in Kilungu MCCRC E483/2022.
  5. On 13th May 2024 he was sentenced to serve 2 years   imprisonment on each count. The  Sentences were to run concurrently.
  6. It is the  applicant’s  contention in the application before  me that  in sentencing   by  the  court  did not  comply  with section 333(2) of the Criminal Procedure Code  which states:

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.

  1. I have checked   the court record and I have found that the applicant’s contention is  correct. 
  2. In the circumstances I find that the application  for    review   is in tandem with  Section 333(2)  of the CPC. I find it has merits and allow   it as prayed. 
  3. The sentence meted to the applicant is revised as follows;

Accused is sentenced to serve two years custodial sentence in count 1 & 2 with effect from 29/8/2023.

Orders accordingly.

Order be served upon the Officer In Charge Makueni GK  Prison for compliance.

File closed.

Dated, signed and delivered via CTS on 12th May 2025

………………………………………………………………..

Mumbua T Matheka
Judge

CA Chrispol

    BRIAN MUTUKU KYALO VS ODPP BRIAN MUTUKU KYALO VS ODPP