' INTRODUCTION
1. .The Applicant, Gilbert Makori Minyonga alias Museveni, has moved this Honourable Court through a Notice of Motion and a Supporting Affidavit seeking:
ii. Spent.
iii. That the applicant herein do hereby humbly request for sentence reduction.
iv. That this application is grounded upon annexed supporting affidavit of the applicant herein amongst other further grounds to be adduced at the hearing of this application .
2. The Applicant was charged and convicted for the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code in High Court Criminal Case No. 96 of 2014 at Kisii.
He was subsequently convicted and sentenced to 25 years imprisonment by Hon. Justice D.S. Majanja. His first appeal to the Court of Appeal in Kisumu Criminal Appeal No. 26 of 2019 was dismissed.
3. In his instant application, the Applicant prays for a review of his sentence on the following grounds:
i. That he is a first offender, remorseful, and has shown rehabilitation and reform.
ii. That he has served 10 years in incarceration and has undergone spiritual and theological training, supported by certificates and a letter of recommendation from the prison authorities.
iii. That the 25-year sentence is manifestly harsh considering the time spent in pre-trial custody, which he urges the Court to consider under Section 333(2) of the Criminal Procedure Code.
iv. That the Applicant seeks leniency, invoking various constitutional protections of fundamental rights, and relies on jurisprudence from Milton Amugune Luvisia & Another vs. Republic, and Samwel Gombe & 2 Others vs. Republic.
4. The state opposed sentence review but not consideration of the application under Section 333(2) of CPC. The state argued that the sentence was confirmed by court of appeal and so this court lacks jurisdiction to review it.
ISSUES FOR DETERMINATION
5. After careful consideration of the application, submissions, and supporting materials, the Court finds two issues for determination:
a. Whether this Court, in the exercise of its supervisory jurisdiction, should review and/or reduce the Applicant''s sentence of 25 years imprisonment.
b. Whether this court is enjoined to take into account the remand period of the applicant in computation of his sentence
ANALYSIS AND DETERMINATION
6. On reduction of the sentence of the applicant . Accused was sentenced to 25 years imprisonment which was confirmed by the court of appeal vide its Judgment dated 25.1.24. I agree with the submissions by the state that this court lacks jurisdiction to interfere with the Judgment of the superior court. I decline to review the sentence .
7. On whether this court ought to consider the remand period of the applicant ,this Court is guided by Section 333(2) of the Criminal Procedure Code, which provides that :
(2) 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.
In the case of Vincent Sila Jona & 87 Others vs Kenya Prison Service & 2 Others [2021] eKLR w Hon. G. V. Odunga J as he was then faced with a similar application held as follows;
A declaration that Trial Courts are enjoined by Section 333(2) of the Criminal Procedure Code, in imposing sentences, other than sentence of death to take into account of the period spent in custody.
A declaration that those who were sentenced in violation of the said section are entitled to have their sentences reviewed by the High Court in order to determine their appropriate sentences.
A declaration that Section 333(2) CPC applies to the original sentence as well as sentence imposed during resentencing……''''….
8. The requirement to comply with Section 333(2) CPC is mandatory . It is clear from the record that Section 333(2) of the CPC was not complied with by the trial court. The offender was first remanded in custody on 21. 1.16 when his plea was taken and he was released on bond on 18.7.16 . I direct that the said remand period be taken into account in computing his sentence of 25 years imprisonment
DELIVERED AT KISII THIS 8TH OCTOBER 2025 IN THE PRESENCE OF MR KOIMA FOR THE STATE , APPLICANT ABSENT. CA KIPCHIRCHIR
'
1. .The Applicant, Gilbert Makori Minyonga alias Museveni, has moved this Honourable Court through a Notice of Motion and a Supporting Affidavit seeking:
ii. Spent.
iii. That the applicant herein do hereby humbly request for sentence reduction.
iv. That this application is grounded upon annexed supporting affidavit of the applicant herein amongst other further grounds to be adduced at the hearing of this application .
2. The Applicant was charged and convicted for the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code in High Court Criminal Case No. 96 of 2014 at Kisii.
He was subsequently convicted and sentenced to 25 years imprisonment by Hon. Justice D.S. Majanja. His first appeal to the Court of Appeal in Kisumu Criminal Appeal No. 26 of 2019 was dismissed.
3. In his instant application, the Applicant prays for a review of his sentence on the following grounds:
i. That he is a first offender, remorseful, and has shown rehabilitation and reform.
ii. That he has served 10 years in incarceration and has undergone spiritual and theological training, supported by certificates and a letter of recommendation from the prison authorities.
iii. That the 25-year sentence is manifestly harsh considering the time spent in pre-trial custody, which he urges the Court to consider under Section 333(2) of the Criminal Procedure Code.
iv. That the Applicant seeks leniency, invoking various constitutional protections of fundamental rights, and relies on jurisprudence from Milton Amugune Luvisia & Another vs. Republic, and Samwel Gombe & 2 Others vs. Republic.
4. The state opposed sentence review but not consideration of the application under Section 333(2) of CPC. The state argued that the sentence was confirmed by court of appeal and so this court lacks jurisdiction to review it.
ISSUES FOR DETERMINATION
5. After careful consideration of the application, submissions, and supporting materials, the Court finds two issues for determination:
a. Whether this Court, in the exercise of its supervisory jurisdiction, should review and/or reduce the Applicant''s sentence of 25 years imprisonment.
b. Whether this court is enjoined to take into account the remand period of the applicant in computation of his sentence
ANALYSIS AND DETERMINATION
6. On reduction of the sentence of the applicant . Accused was sentenced to 25 years imprisonment which was confirmed by the court of appeal vide its Judgment dated 25.1.24. I agree with the submissions by the state that this court lacks jurisdiction to interfere with the Judgment of the superior court. I decline to review the sentence .
7. On whether this court ought to consider the remand period of the applicant ,this Court is guided by Section 333(2) of the Criminal Procedure Code, which provides that :
(2) 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.
In the case of Vincent Sila Jona & 87 Others vs Kenya Prison Service & 2 Others [2021] eKLR w Hon. G. V. Odunga J as he was then faced with a similar application held as follows;
A declaration that Trial Courts are enjoined by Section 333(2) of the Criminal Procedure Code, in imposing sentences, other than sentence of death to take into account of the period spent in custody.
A declaration that those who were sentenced in violation of the said section are entitled to have their sentences reviewed by the High Court in order to determine their appropriate sentences.
A declaration that Section 333(2) CPC applies to the original sentence as well as sentence imposed during resentencing……''''….
8. The requirement to comply with Section 333(2) CPC is mandatory . It is clear from the record that Section 333(2) of the CPC was not complied with by the trial court. The offender was first remanded in custody on 21. 1.16 when his plea was taken and he was released on bond on 18.7.16 . I direct that the said remand period be taken into account in computing his sentence of 25 years imprisonment
DELIVERED AT KISII THIS 8TH OCTOBER 2025 IN THE PRESENCE OF MR KOIMA FOR THE STATE , APPLICANT ABSENT. CA KIPCHIRCHIR
'