Criminal Misc. Application No. E137 of 2025 Page 1 of 5
REPUBLIC OF KENYA
IN THE HIGH COURT AT VIHIGA
CRIMINAL MISC. APPL. NO. E024 OF 2026
IN THE MATTER OF ARTICLES 22(1), 23(1), 25(c), 27(10(4), 50(2)(p)(q),
159(2) AND 165(3) OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF SECTION 333(2) OF THE CRIMINAL PROCEDURE
CODE CAP 75 LAWS OF KENYA
DANIEL AKWEZA SUSA…………………………………..………………….APPLICANT
VERSUS
REPUBLIC……………………………………………………………………RESPONDENT
Coram: Before Justice R. Nyakundi
Leina Davies for the State
RULING
1. Before this Court is notice of motion dated 28th day of October 2025, by the
Applicant seeking the following orders:
a. THAT, I was charged with the offence of defilement contrary to Section 8[1]
as read with Section 8[2] of the Sexual Offences Act No.3 of 2006 and
sentenced to serve 25 years imprisonment via COA CRIMINAL APPEAL
NO:193 OF 2017
b. THAT, May the hon. Court be pleased to order that the time spent in remand
custody be computed in the sentence.
2. Which application is based on the following grounds; -
a. THAT, I was arrested on the 19th of July,2013 and held at Mudete police
Station for 2 days and later remanded at Kodiaga Prison.
Criminal Misc. Application No. E137 of 2025 Page 2 of 5
b. THAT, I was convicted to serve 25 years by the Court of appeal at Kisumu
vide Criminal Appeal No.193 of 2017.
c. THAT, in aggregate I was in remand for a total of 1 year & 3 months
d. THAT the respondents will not suffer any prejudice should prayers in this
application be granted.
e. THAT, I pray for the period spent in custody prior to the sentence to be
computed into my sentence.
f. THAT, the High Court has competent jurisdiction to hear and determine this
application under Article 165(3)(b) of the Constitution of Kenya 2010.
Decision
3. This application is based in the provisions of Section 333(2) which provides
as follows:
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.
4. It is imperative to mention under Article 2(5)(6) of the Constitution,
International Law forms part of sources of Kenya Law to be applied in
jurisprudential decision making. Therefore, International and Regional
Instruments generally establish that pretrial detention must be a measure of
last resort, used only when necessary and that any time spent in detention
prior to conviction must be credited towards the final sentence. This is rooted
in the presumption of innocence in line with Article 50(2)(a) of the
Constitution.
5. It cannot be denied as of early 2026, the total prison population in Kenya is
approximately 60,740, with a significant proportion consisting of remandees
(pre-trial detainees). Therefore, the justice sector cannot overlook the aspect
Criminal Misc. Application No. E137 of 2025 Page 3 of 5
of excessive and arbitrary pretrial detention as a form of human right abuse
which affects thousands of remandees as the above statistics demonstrate
and as a consequence it undermines the rule of law. it is also a fact that
person who have been arraigned before Court as suspects to a crime are
presumed innocent until the contrary is proved by the State through the office
of the Director of Public Prosecution. It is not about just their right to liberty
but pretrial detainees may lose their jobs if they were in gainful employment,
their families both spouses and children suffer immensely in terms of
securing their survival rights due to the long incarceration of their bread
winners where the household depends on the male spouse to make provision
financially for the basic rights. The negative impact to pretrial detention also
sets in the physical, psychological, emotional and including some elements
due to the conditions availed during their detention.
6. This is what the former Special Rapporteur on Torture Sir Nigel Rodley
A/56/156, par 35 was referring to when he was making this statement.
[T]here needs to be a radical transformation of assumptions in international
society about the nature of deprivation of liberty. The basic paradigm, taken for
granted over at least a century, is that prisons, police stations and the like are
closed and secret places, with activities inside hidden from public view. The
international standards referred to are conceived of as often unwelcome
exceptions to the general norm of opacity, merely the occasional ray of light
piercing the pervasive darkness. What is needed is to replace the paradigm of
opacity by one of transparency. The assumption should be one of open access
to all places of deprivation of liberty. Of course, there will have to be regulations
to safeguard the security of the institution and individuals within it, and
measures to safeguard their privacy and dignity. But those regulations and
measures will be the exception, having to be justified as such; the rule will be
openness.
7. In the arena of International Law, the key instruments on this canon on
pretrial detention include the ICCPR (Articles 9 & 14) which protects against
arbitrarily detention and guarantees a fair trial, the 1988 body of principles,
Criminal Misc. Application No. E137 of 2025 Page 4 of 5
which demands judicial oversight and credit for time served, and the Tokyo
Rules (1990) which promote using alternatives to detention as a last resort.
Whereas the regional framework is clearly crystallizing in Europe with ECHR
which prohibits excessive detention while in the American system the ACHR,
emphasizes proportionality and necessity, prohibiting mandatory detention.
The continent of Africa has also not been left behind as the African
Commission’s Luanda guidelines set strictly standards for limiting pretrial
detention. In so far as the ICTY/ICTR Rule 101(C) is concerned it require that
all time spent in custody prior to conviction and sentencing is credited against
the final sentence. See also OHCHR Human Rights and Pretrial detention: A
Handbook of International Standards, UNODC: Detention Prior to Adjudication
and IACHR: Practical Guide on Measures to Reduce Pretrial Detention.
8. In addition to the above instruments the following provisions are also on point
with regard to pretrial detention against an accused person who has been
charged before a Court of law but not yet released on bail as required under
Article 49 (1)(H) of the Constitution. Thus, the Standard Minimum Rules for
Non-Custodial Measures (Tokyo Rules) state that pre-trial detention “shall be”
used as a means of “last resort in criminal proceedings” (6.1); that where the
protection of society, prevention of crime, respect for law and rights of victims
are not compromised, the police or prosecution “should be empowered to
discharge the offender”. The Standard Minimum Rules for the Treatment of
Prisoners (Rules 84-93) dedicate a section to prisoners under arrest or awaiting
trial. These provisions act as guidelines for the prison authorities governing the
conditions of detention of pre-trial prisoners, the privileges to which they are
entitled and access to legal advice and assistance. In the case of young persons
in conflict with the law, the Convention on the Rights of the Child states that
the detention or imprisonment of a child shall be used “only as a measure of
last resort and for the shortest period of time” (CRC 37(b)).
9. In the sentencing regime of Kenya, the component of the principle of
proportionality in sentencing or imposition of sentence prohibits grossly
disproportionate punishment. I am in agreement with this statement that the
Criminal Misc. Application No. E137 of 2025 Page 5 of 5
principle of proportionality in the sentencing process should be applied at all
material times when a trial Court is set to consider the crafting of a justice
sentence. In this sense the principle of proportionality is closely associated
with the established principle that a law that violates the right to life in Article
26, the right to equality before the law and nondiscrimination under Article
27, the right to Human Dignity in Article 28, the right to Liberty and the
Security of the person in Article 29, all of the Constitution of Kenya are
tailored to give effect to both the principles of fundamental justice.
10. In the present case the Applicant was in remand custody for 1 year and 3
months before the conclusion of his trial which he was subsequently found
guilty, convicted and sentence of the offence of defilement contrary to Section
8(1) as read 8(2) of the Sexual offences act to serve 25 years imprisonment.
The scope of this sentence in the sense of the word and the Supreme Court
decisions in the Kitsao case critically examined and assed within the
legislative purposes and means closed by parliament so as to achieve its goal
and the wider social benefits of the legislation ought to be enhanced to life
imprisonment. However, this matter had gone into appeal process and this
Court has no competent jurisdiction to review the judgement of the Court of
Appeal. In so far as the provisions of Section 333(2) is concerned the
committal warrant to prison be and is hereby amended to precisely
incorporate 1 year and 3 months so as to meet the objective of the law in the
CPC.
DATED AND DELIVERED AT ELDORET THIS 26TH DAY OF MAY 2026
R. NYAKUNDI
JUDGE
REPUBLIC OF KENYA
IN THE HIGH COURT AT VIHIGA
CRIMINAL MISC. APPL. NO. E024 OF 2026
IN THE MATTER OF ARTICLES 22(1), 23(1), 25(c), 27(10(4), 50(2)(p)(q),
159(2) AND 165(3) OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF SECTION 333(2) OF THE CRIMINAL PROCEDURE
CODE CAP 75 LAWS OF KENYA
DANIEL AKWEZA SUSA…………………………………..………………….APPLICANT
VERSUS
REPUBLIC……………………………………………………………………RESPONDENT
Coram: Before Justice R. Nyakundi
Leina Davies for the State
RULING
1. Before this Court is notice of motion dated 28th day of October 2025, by the
Applicant seeking the following orders:
a. THAT, I was charged with the offence of defilement contrary to Section 8[1]
as read with Section 8[2] of the Sexual Offences Act No.3 of 2006 and
sentenced to serve 25 years imprisonment via COA CRIMINAL APPEAL
NO:193 OF 2017
b. THAT, May the hon. Court be pleased to order that the time spent in remand
custody be computed in the sentence.
2. Which application is based on the following grounds; -
a. THAT, I was arrested on the 19th of July,2013 and held at Mudete police
Station for 2 days and later remanded at Kodiaga Prison.
Criminal Misc. Application No. E137 of 2025 Page 2 of 5
b. THAT, I was convicted to serve 25 years by the Court of appeal at Kisumu
vide Criminal Appeal No.193 of 2017.
c. THAT, in aggregate I was in remand for a total of 1 year & 3 months
d. THAT the respondents will not suffer any prejudice should prayers in this
application be granted.
e. THAT, I pray for the period spent in custody prior to the sentence to be
computed into my sentence.
f. THAT, the High Court has competent jurisdiction to hear and determine this
application under Article 165(3)(b) of the Constitution of Kenya 2010.
Decision
3. This application is based in the provisions of Section 333(2) which provides
as follows:
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.
4. It is imperative to mention under Article 2(5)(6) of the Constitution,
International Law forms part of sources of Kenya Law to be applied in
jurisprudential decision making. Therefore, International and Regional
Instruments generally establish that pretrial detention must be a measure of
last resort, used only when necessary and that any time spent in detention
prior to conviction must be credited towards the final sentence. This is rooted
in the presumption of innocence in line with Article 50(2)(a) of the
Constitution.
5. It cannot be denied as of early 2026, the total prison population in Kenya is
approximately 60,740, with a significant proportion consisting of remandees
(pre-trial detainees). Therefore, the justice sector cannot overlook the aspect
Criminal Misc. Application No. E137 of 2025 Page 3 of 5
of excessive and arbitrary pretrial detention as a form of human right abuse
which affects thousands of remandees as the above statistics demonstrate
and as a consequence it undermines the rule of law. it is also a fact that
person who have been arraigned before Court as suspects to a crime are
presumed innocent until the contrary is proved by the State through the office
of the Director of Public Prosecution. It is not about just their right to liberty
but pretrial detainees may lose their jobs if they were in gainful employment,
their families both spouses and children suffer immensely in terms of
securing their survival rights due to the long incarceration of their bread
winners where the household depends on the male spouse to make provision
financially for the basic rights. The negative impact to pretrial detention also
sets in the physical, psychological, emotional and including some elements
due to the conditions availed during their detention.
6. This is what the former Special Rapporteur on Torture Sir Nigel Rodley
A/56/156, par 35 was referring to when he was making this statement.
[T]here needs to be a radical transformation of assumptions in international
society about the nature of deprivation of liberty. The basic paradigm, taken for
granted over at least a century, is that prisons, police stations and the like are
closed and secret places, with activities inside hidden from public view. The
international standards referred to are conceived of as often unwelcome
exceptions to the general norm of opacity, merely the occasional ray of light
piercing the pervasive darkness. What is needed is to replace the paradigm of
opacity by one of transparency. The assumption should be one of open access
to all places of deprivation of liberty. Of course, there will have to be regulations
to safeguard the security of the institution and individuals within it, and
measures to safeguard their privacy and dignity. But those regulations and
measures will be the exception, having to be justified as such; the rule will be
openness.
7. In the arena of International Law, the key instruments on this canon on
pretrial detention include the ICCPR (Articles 9 & 14) which protects against
arbitrarily detention and guarantees a fair trial, the 1988 body of principles,
Criminal Misc. Application No. E137 of 2025 Page 4 of 5
which demands judicial oversight and credit for time served, and the Tokyo
Rules (1990) which promote using alternatives to detention as a last resort.
Whereas the regional framework is clearly crystallizing in Europe with ECHR
which prohibits excessive detention while in the American system the ACHR,
emphasizes proportionality and necessity, prohibiting mandatory detention.
The continent of Africa has also not been left behind as the African
Commission’s Luanda guidelines set strictly standards for limiting pretrial
detention. In so far as the ICTY/ICTR Rule 101(C) is concerned it require that
all time spent in custody prior to conviction and sentencing is credited against
the final sentence. See also OHCHR Human Rights and Pretrial detention: A
Handbook of International Standards, UNODC: Detention Prior to Adjudication
and IACHR: Practical Guide on Measures to Reduce Pretrial Detention.
8. In addition to the above instruments the following provisions are also on point
with regard to pretrial detention against an accused person who has been
charged before a Court of law but not yet released on bail as required under
Article 49 (1)(H) of the Constitution. Thus, the Standard Minimum Rules for
Non-Custodial Measures (Tokyo Rules) state that pre-trial detention “shall be”
used as a means of “last resort in criminal proceedings” (6.1); that where the
protection of society, prevention of crime, respect for law and rights of victims
are not compromised, the police or prosecution “should be empowered to
discharge the offender”. The Standard Minimum Rules for the Treatment of
Prisoners (Rules 84-93) dedicate a section to prisoners under arrest or awaiting
trial. These provisions act as guidelines for the prison authorities governing the
conditions of detention of pre-trial prisoners, the privileges to which they are
entitled and access to legal advice and assistance. In the case of young persons
in conflict with the law, the Convention on the Rights of the Child states that
the detention or imprisonment of a child shall be used “only as a measure of
last resort and for the shortest period of time” (CRC 37(b)).
9. In the sentencing regime of Kenya, the component of the principle of
proportionality in sentencing or imposition of sentence prohibits grossly
disproportionate punishment. I am in agreement with this statement that the
Criminal Misc. Application No. E137 of 2025 Page 5 of 5
principle of proportionality in the sentencing process should be applied at all
material times when a trial Court is set to consider the crafting of a justice
sentence. In this sense the principle of proportionality is closely associated
with the established principle that a law that violates the right to life in Article
26, the right to equality before the law and nondiscrimination under Article
27, the right to Human Dignity in Article 28, the right to Liberty and the
Security of the person in Article 29, all of the Constitution of Kenya are
tailored to give effect to both the principles of fundamental justice.
10. In the present case the Applicant was in remand custody for 1 year and 3
months before the conclusion of his trial which he was subsequently found
guilty, convicted and sentence of the offence of defilement contrary to Section
8(1) as read 8(2) of the Sexual offences act to serve 25 years imprisonment.
The scope of this sentence in the sense of the word and the Supreme Court
decisions in the Kitsao case critically examined and assed within the
legislative purposes and means closed by parliament so as to achieve its goal
and the wider social benefits of the legislation ought to be enhanced to life
imprisonment. However, this matter had gone into appeal process and this
Court has no competent jurisdiction to review the judgement of the Court of
Appeal. In so far as the provisions of Section 333(2) is concerned the
committal warrant to prison be and is hereby amended to precisely
incorporate 1 year and 3 months so as to meet the objective of the law in the
CPC.
DATED AND DELIVERED AT ELDORET THIS 26TH DAY OF MAY 2026
R. NYAKUNDI
JUDGE