REPUBLIC OF KENYA
IN THE HIGH COURT AT HOMABAY
CRIMINAL MISC. APPL NO E122 OF 2025
EMMANUEL OKINYI ODIRA …………………………................................ APPLICANT
VERSUS
REPUBLIC ………………………..……………………………………………. RESPONDENT
(Arising from the original conviction and sentence of Hon. Nicodemus E M ONZERE (PM) in PMC SO Case No.E0 25 of 2022)
RULING
1. Before the court is an application by the applicant seeking the enforcement of section 333(2) the criminal procedure code. The Applicant was charged for the offence of Rape contrary to Section 3(1)a, b and c as read with Section 3(3) of the Sexual Offences Act.
2. The particulars of the offence were stated to be that on the 16 th day of August- 2021 at around 2100hrs at Nyamor Village of Kanyamwa Central Location, Ndhiwa Sub-County within Homabay County, the Applicant unlawfully and unintentionally caused his penis to penetrate the vagina of one Magdalina Osumo Oginga, without her consent and by use of threat.
3. The Applicant equally faced an alternative charge of committing an indecent act with an adult contrary to section 11A of the Sexual Offences Act No. 3 of 2006. The particulars of the alternative charge were that on the same date, time and place of the main charge, the Applicant unlawfully and unintentionally touched the genital organ (vagina) of Magdaline Osumo oginga.
4. In addition, he faced the charge of Robbery with violence contrary to section 296(2) of the penal code whose particulars were the same as those in the sexual offences save for the nature of the offence.
5. The Applicant was arraigned before the court on the 9 th of September 2022 before the trial court when he pleaded not guilty after the charges were read and explained to him. The court admitted him to a bond of Kshs 200,000/ with one surety in the like sum.
6. After a full trial, the court found the prosecution to have proved its case to beyond reasonable doubt adjudged the applicant guilty of the charges for rape and robbery with violence, convicted him and consequently sentenced him to serve ten years (10) years imprisonment terms. The sentences were ordered to run concurrently.
7. By way of a Notice of Motion Supported with and Affidavit, both dated the 11 th day of September 2025, premised on the provisions of Section 333(2) of the Criminal Procedure Code, the applicant seeks the court’s intervention in enforcing the mandatory requirement of the law and that time spent in remand custody be given consideration to proportionately reduce the sentence imposed. Even though the applicant asserts that he is serving 20 years term, the records show that the sentences run concurrently and therefore the term is not aggregable.
8. The Applicant contends and the records reveal that during the protracted trial period, from his arraignment on the 07.09.2022 to the date of sentence on 14.03.2024, he remained in incarceration and that such period was never accounted for and taken into account by the trial court.
9. The application is unopposed by the Respondent who instead urge the court to take into account the period spent by the Applicant in custody.
Determination
10. Section 333(2) of the CPC affords to the court no discretion but obligates that every sentence shall, where the person so sentenced has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.
11. In the case of Ahamad Abolfathi Mohammed M Another vs Republic (2018) eKLR , the Court of Appeal interpreted the law and gave its import in the following words: -
“The second is the failure by the court to take into account in a meaningful way, the period that the appellants had spent in custody as required by section 333(2) of the Criminal Procedure Code . By dint of section 333(2) of the Criminal Procedure Code , the court was obliged to take into account the period that they had spent in custody before they were sentenced . Although the learned judge stated that he had taken into account the period the appellants had been in custody, he ordered that their sentence shall take effect from the date of their conviction by the trial court. With respect, there is no evidence that the court took into account the period already spent by the appellants in custody.
“Taking into account” the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody. It is not enough for the court to merely state that it has taken into account the period already spent in custody and still order the sentence to run from the date of the conviction because that amounts to ignoring altogether the period already spent in custody. It must be remembered that the proviso to section 333(2) of the Criminal Procedure Code was introduced in 2007 to give the court power to include the period already spent in custody in the sentence that it metes out to the accused person...”
12. In the judgement on record, there is not an allusion to that period spent in remand custody at all. That was not in compliance with the law and this court when appropriately moved, like it has, has no option but to correct the error by making the sentence compliant .
13. Accordingly, the court finds that the application is meritorious and direct that the computation of the term shall commence on the 06.09.2022, the day he was arrested and placed into remand custody.
14. The application is therefore allowed to that extent. Let the court file be closed.
Dated, signed and delivered virtually this 14 th day of April 2026.
Patrick J O Otieno
Judge
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IN THE HIGH COURT AT HOMABAY
CRIMINAL MISC. APPL NO E122 OF 2025
EMMANUEL OKINYI ODIRA …………………………................................ APPLICANT
VERSUS
REPUBLIC ………………………..……………………………………………. RESPONDENT
(Arising from the original conviction and sentence of Hon. Nicodemus E M ONZERE (PM) in PMC SO Case No.E0 25 of 2022)
RULING
1. Before the court is an application by the applicant seeking the enforcement of section 333(2) the criminal procedure code. The Applicant was charged for the offence of Rape contrary to Section 3(1)a, b and c as read with Section 3(3) of the Sexual Offences Act.
2. The particulars of the offence were stated to be that on the 16 th day of August- 2021 at around 2100hrs at Nyamor Village of Kanyamwa Central Location, Ndhiwa Sub-County within Homabay County, the Applicant unlawfully and unintentionally caused his penis to penetrate the vagina of one Magdalina Osumo Oginga, without her consent and by use of threat.
3. The Applicant equally faced an alternative charge of committing an indecent act with an adult contrary to section 11A of the Sexual Offences Act No. 3 of 2006. The particulars of the alternative charge were that on the same date, time and place of the main charge, the Applicant unlawfully and unintentionally touched the genital organ (vagina) of Magdaline Osumo oginga.
4. In addition, he faced the charge of Robbery with violence contrary to section 296(2) of the penal code whose particulars were the same as those in the sexual offences save for the nature of the offence.
5. The Applicant was arraigned before the court on the 9 th of September 2022 before the trial court when he pleaded not guilty after the charges were read and explained to him. The court admitted him to a bond of Kshs 200,000/ with one surety in the like sum.
6. After a full trial, the court found the prosecution to have proved its case to beyond reasonable doubt adjudged the applicant guilty of the charges for rape and robbery with violence, convicted him and consequently sentenced him to serve ten years (10) years imprisonment terms. The sentences were ordered to run concurrently.
7. By way of a Notice of Motion Supported with and Affidavit, both dated the 11 th day of September 2025, premised on the provisions of Section 333(2) of the Criminal Procedure Code, the applicant seeks the court’s intervention in enforcing the mandatory requirement of the law and that time spent in remand custody be given consideration to proportionately reduce the sentence imposed. Even though the applicant asserts that he is serving 20 years term, the records show that the sentences run concurrently and therefore the term is not aggregable.
8. The Applicant contends and the records reveal that during the protracted trial period, from his arraignment on the 07.09.2022 to the date of sentence on 14.03.2024, he remained in incarceration and that such period was never accounted for and taken into account by the trial court.
9. The application is unopposed by the Respondent who instead urge the court to take into account the period spent by the Applicant in custody.
Determination
10. Section 333(2) of the CPC affords to the court no discretion but obligates that every sentence shall, where the person so sentenced has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.
11. In the case of Ahamad Abolfathi Mohammed M Another vs Republic (2018) eKLR , the Court of Appeal interpreted the law and gave its import in the following words: -
“The second is the failure by the court to take into account in a meaningful way, the period that the appellants had spent in custody as required by section 333(2) of the Criminal Procedure Code . By dint of section 333(2) of the Criminal Procedure Code , the court was obliged to take into account the period that they had spent in custody before they were sentenced . Although the learned judge stated that he had taken into account the period the appellants had been in custody, he ordered that their sentence shall take effect from the date of their conviction by the trial court. With respect, there is no evidence that the court took into account the period already spent by the appellants in custody.
“Taking into account” the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody. It is not enough for the court to merely state that it has taken into account the period already spent in custody and still order the sentence to run from the date of the conviction because that amounts to ignoring altogether the period already spent in custody. It must be remembered that the proviso to section 333(2) of the Criminal Procedure Code was introduced in 2007 to give the court power to include the period already spent in custody in the sentence that it metes out to the accused person...”
12. In the judgement on record, there is not an allusion to that period spent in remand custody at all. That was not in compliance with the law and this court when appropriately moved, like it has, has no option but to correct the error by making the sentence compliant .
13. Accordingly, the court finds that the application is meritorious and direct that the computation of the term shall commence on the 06.09.2022, the day he was arrested and placed into remand custody.
14. The application is therefore allowed to that extent. Let the court file be closed.
Dated, signed and delivered virtually this 14 th day of April 2026.
Patrick J O Otieno
Judge
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