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1. Before this court is an application seeking that the Applicant’s sentence be computed in accordance with Section 333(2) of the Criminal Procedure Code, such that it commences from the date of arrest 17/10/2020. The applicant also seeks a downward review of the 15 year sentence imposed upon conviction.
2. The application is supported by the grounds on the face of the application and on the supporting affidavit of Daniel Oloo Obuya. He depones that he was arrested on 17/10/2020 and charged in Criminal Case No. E10 of 2020 with the offence of defilement contrary to Section 8 (1) as read with Section 8(4) of Sexual Offense Act. He was found guilty and convicted to 15 years sentence. Dissatisfied with the trial court finding he lodged an appeal vide Machakos Criminal Appeal No. E019 of 2022 which was dismissed on 11/4/2014.
3. Thus, the Applicant urges this court to consider his mitigation and reduce the sentence. He also contends that the court failed to take into account the period he had spent in custody prior to sentencing, as required under Section 333(2) of the Criminal Procedure Code.
4. The Respondent opposes the application, arguing that it is misconceived and bad in law. They submit that the application seeks to review a decision made by a court of concurrent jurisdiction, and therefore this Court is functus officio. They further contend that the jurisprudence surrounding minimum sentence under the Sexual Offences Act is settled, lawful and constitutional
5. This court agrees with the Respondent position that the law on minimum sentencing under the Sexual Offences Act has been upheld as lawful and constitutional. See the Supreme Court decision in Petition E018 of 2023 Republic vs Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (2024) KESC 34 (KLR)
6. Regarding the Applicants right under section 333 of the Criminal Procedure Code, this court notes that the trial court expressly addressed the issue during sentencing. The trial court observed that;
“ I have considered the victim impact report and mitigation by accused person. I note the accused is a first offender but he is not remorseful for his acts. He was an adult when he engaged in sexual relationship with the minor who has no capacity to give consent in such an engagement. Section 8(4) of the Sexual Offences Act provides for a sentence of not less than 15 years imprisonment. I therefore sentence the accused person to 15 years imprisonment. I note the accused person has been in custody since 19/10/2020. Sentence will run from 19/10/2020”.(Emphasis Added)
7. Based on the above, it is evident that the trial court did consider the time spent in custody and explicitly stated the date from which the sentence would commence. Therefore, the Applicant’s claim that the trial court failed to apply section 333(2) of the CPC is unfounded.
8. Furthermore, the appellate court in its judgment delivered on 11th April 2024 upheld the trial court’s judgment. Thus, this court finds that the present application is misconceived and proceed to dismiss it.
Dated, signed and delivered at Machakos this 9th day of October 2025.
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1. Before this court is an application seeking that the Applicant’s sentence be computed in accordance with Section 333(2) of the Criminal Procedure Code, such that it commences from the date of arrest 17/10/2020. The applicant also seeks a downward review of the 15 year sentence imposed upon conviction.
2. The application is supported by the grounds on the face of the application and on the supporting affidavit of Daniel Oloo Obuya. He depones that he was arrested on 17/10/2020 and charged in Criminal Case No. E10 of 2020 with the offence of defilement contrary to Section 8 (1) as read with Section 8(4) of Sexual Offense Act. He was found guilty and convicted to 15 years sentence. Dissatisfied with the trial court finding he lodged an appeal vide Machakos Criminal Appeal No. E019 of 2022 which was dismissed on 11/4/2014.
3. Thus, the Applicant urges this court to consider his mitigation and reduce the sentence. He also contends that the court failed to take into account the period he had spent in custody prior to sentencing, as required under Section 333(2) of the Criminal Procedure Code.
4. The Respondent opposes the application, arguing that it is misconceived and bad in law. They submit that the application seeks to review a decision made by a court of concurrent jurisdiction, and therefore this Court is functus officio. They further contend that the jurisprudence surrounding minimum sentence under the Sexual Offences Act is settled, lawful and constitutional
5. This court agrees with the Respondent position that the law on minimum sentencing under the Sexual Offences Act has been upheld as lawful and constitutional. See the Supreme Court decision in Petition E018 of 2023 Republic vs Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (2024) KESC 34 (KLR)
6. Regarding the Applicants right under section 333 of the Criminal Procedure Code, this court notes that the trial court expressly addressed the issue during sentencing. The trial court observed that;
“ I have considered the victim impact report and mitigation by accused person. I note the accused is a first offender but he is not remorseful for his acts. He was an adult when he engaged in sexual relationship with the minor who has no capacity to give consent in such an engagement. Section 8(4) of the Sexual Offences Act provides for a sentence of not less than 15 years imprisonment. I therefore sentence the accused person to 15 years imprisonment. I note the accused person has been in custody since 19/10/2020. Sentence will run from 19/10/2020”.(Emphasis Added)
7. Based on the above, it is evident that the trial court did consider the time spent in custody and explicitly stated the date from which the sentence would commence. Therefore, the Applicant’s claim that the trial court failed to apply section 333(2) of the CPC is unfounded.
8. Furthermore, the appellate court in its judgment delivered on 11th April 2024 upheld the trial court’s judgment. Thus, this court finds that the present application is misconceived and proceed to dismiss it.
Dated, signed and delivered at Machakos this 9th day of October 2025.
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