REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT VIHIGA
CRIMINAL MISCELLANEOUS APPLICATION NO E031 OF 2025
GRAFFLINE MATANYE……………………………………………….APPLICANT
VERSUS
REPUBLIC……………………………………………………………..RESPONDENT
RULING
INTRODUCTION
1. The Applicant herein was charged with the offence of gang rape contrary to Section 10 of the Sexual Offences Act No 3 of 2006. He was also charged with an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No 3 of 2006. He was convicted of the main charge and sentenced to serve three (3) years’ probation.
2. On 21 st October 2025, he filed Notice of Motion application dated 10 th June 2025 seeking an order that the period of five (5) months and twenty-three (23) days he spent in remand be considered as part of his sentence. He contended that he was arrested on 3 rd March 2022, released on bond on 26 th August 2022 and sentenced on 7 th August 2023.
3. He invoked Section 333(2) of the Criminal Procedure Code and placed reliance on the case of Ahmad Abolfathi Mohammed & Another vs Republic[2018]eKLR where it was held that sentence of imprisonment ought to run from the date of arrest. He added that the omission by the Trial Court was not in promotion of his right to fair trial as credibly spelt in Articles 19(2)(3)(a) and (b), 20(1)(3)(a) and (b) and 50(2)(p) of the Constitution of Kenya, 2010.
4. The Respondent was not opposed to his application and hence both parties did not file their respective Written Submissions. This Ruling is, therefore, based on the Applicant’s application and his affidavit evidence.
LEGAL ANALYSIS
5. The Applicant herein was charged under the provisions of Section 10 of the Sexual Offences Act which provides as follows:-
“Any person who commits the offence of rape or defilement under this Act in association with another or others, or any person who, with common intention, is in the company of another or others who commit the offence of rape or defilement is guilty of an offence termed gang rape and is liable upon conviction to imprisonment for a term of not less fifteen years but which may be enhanced to imprisonment for life.”
6. Notably, this court could not fault the Trial Court for having sentenced him to a lesser sentence than was prescribed in the Sexual Offences Act as the jurisprudence at the time he was sentenced allowed courts to exercise discretion during sentencing.
7. However, on 12 th July 2024, the Supreme Court overturned the decision of the Court of Appeal in the case Joshua Gichuki Mwangi vs Republic [2022] eKLR which had reiterated the reasoning in the case of Dismas Wafula Kilwake vs Republic [2018] eKLR to the effect that Section 8 of the Sexual Offences Act had to be interpreted so as not to take away the discretion of the court in sentencing offences and held that it was impermissible for the legislature to take away the discretion of courts and to compel them to mete out sentences that were disproportionate to what would otherwise be an appropriate sentence. In its said decision, the Supreme Court held that the Court of Appeal had no jurisdiction to exercise discretion on sentences that had a mandatory minimum sentence.
8. As this court was bound by the decisions of courts superior to it, its hands would have been tied regarding exercising its discretion to reduce the Applicant’s sentence.
9. This court would not, however, have been persuaded to enhance the sentence to life imprisonment, as the Respondent did not put the Applicant on notice that it would be seeking an enhancement of the sentence which would have allowed him to make an informed decision as to whether he would have wished to proceed with his appeal or if he would have wished to abandon the same. Enhancing his sentence without giving him an opportunity to respond would be contrary to the principles of fair trial provided in Article 50 of the Constitution of Kenya. All the same, the Respondent did not seek an enhancement of the sentence but had in fact conceded to the present application.
10. The above notwithstanding, this court noted that although the Applicant had indicated that he was serving five (5) years imprisonment, a perusal of the Trial Court’s proceedings showed that he was in fact sentenced to serve a three (3) years’ probation. However, at the time of writing the committals, it was indicated that he was to serve five (5) years instead of the Probation of three (3) years while his Co-Accused person who was sentenced to five (5) years was released on three (3) years’ Probation.
11. Save to state that the Applicant still walked away with a much too lenient sentence, it was a travesty of justice for him to have served a sentence that belonged to his Co-Accused person. There was gross negligence on the part of the court in making him serve a sentence that was not his. This court did not wish to say more on this matter but left the matter at the discretion of the Applicant herein on how to proceed .
12. As he ought to have served a non-custodial sentence, Section 333(2) of the Criminal Procedure Code under which his present application was premised was, therefore, not applicable in the circumstances of the case herein.
13. Indeed, Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya) provides that:-
“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 ” (emphasis court).
14. Further, Clause 4.6.20 (ix) of the Judiciary Sentencing Policy Guidelines
provides that:-
“The Sentencing Court shall be guided by the sentencing principles and objectives set out in Part I of these the Guidelines in all resentencing hearings. The following mitigating factors were set out by the Supreme Court as particularly relevant in a resentencing hearing:…
Time already spent in prison by the convict…”
15. The requirement under Section 333(2) of the Criminal Procedure Code was restated by the Court of Appeal in Ahamad Abolfathi Mohammed & Another vs Republic (Supra).
DISPOSITION
16. For the foregoing reasons, the upshot of this court’s decision was that the Applicant’s Notice of Motion application dated 10 th June 2025 and filed on 21 st October 2025 was not merited and the same be and is hereby dismissed.
17. However, as it was evident that the Applicant was erroneously committed to prison to serve five (5) years imprisonment instead of serving a non-custodial sentence of three (3) years’ Probation, it is hereby directed that the Applicant be and is hereby released from custody forthwith unless he be held for any other lawful cause as his incarceration and continued incarceration was illegal and unlawful,.
18. It is so ordered.
DATED and DELIVERED at VIHIGA this 23 rd day of February 2026
J. KAMAU
JUDGE
hccr misc appl no e031 of 20252
IN THE HIGH COURT OF KENYA AT VIHIGA
CRIMINAL MISCELLANEOUS APPLICATION NO E031 OF 2025
GRAFFLINE MATANYE……………………………………………….APPLICANT
VERSUS
REPUBLIC……………………………………………………………..RESPONDENT
RULING
INTRODUCTION
1. The Applicant herein was charged with the offence of gang rape contrary to Section 10 of the Sexual Offences Act No 3 of 2006. He was also charged with an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No 3 of 2006. He was convicted of the main charge and sentenced to serve three (3) years’ probation.
2. On 21 st October 2025, he filed Notice of Motion application dated 10 th June 2025 seeking an order that the period of five (5) months and twenty-three (23) days he spent in remand be considered as part of his sentence. He contended that he was arrested on 3 rd March 2022, released on bond on 26 th August 2022 and sentenced on 7 th August 2023.
3. He invoked Section 333(2) of the Criminal Procedure Code and placed reliance on the case of Ahmad Abolfathi Mohammed & Another vs Republic[2018]eKLR where it was held that sentence of imprisonment ought to run from the date of arrest. He added that the omission by the Trial Court was not in promotion of his right to fair trial as credibly spelt in Articles 19(2)(3)(a) and (b), 20(1)(3)(a) and (b) and 50(2)(p) of the Constitution of Kenya, 2010.
4. The Respondent was not opposed to his application and hence both parties did not file their respective Written Submissions. This Ruling is, therefore, based on the Applicant’s application and his affidavit evidence.
LEGAL ANALYSIS
5. The Applicant herein was charged under the provisions of Section 10 of the Sexual Offences Act which provides as follows:-
“Any person who commits the offence of rape or defilement under this Act in association with another or others, or any person who, with common intention, is in the company of another or others who commit the offence of rape or defilement is guilty of an offence termed gang rape and is liable upon conviction to imprisonment for a term of not less fifteen years but which may be enhanced to imprisonment for life.”
6. Notably, this court could not fault the Trial Court for having sentenced him to a lesser sentence than was prescribed in the Sexual Offences Act as the jurisprudence at the time he was sentenced allowed courts to exercise discretion during sentencing.
7. However, on 12 th July 2024, the Supreme Court overturned the decision of the Court of Appeal in the case Joshua Gichuki Mwangi vs Republic [2022] eKLR which had reiterated the reasoning in the case of Dismas Wafula Kilwake vs Republic [2018] eKLR to the effect that Section 8 of the Sexual Offences Act had to be interpreted so as not to take away the discretion of the court in sentencing offences and held that it was impermissible for the legislature to take away the discretion of courts and to compel them to mete out sentences that were disproportionate to what would otherwise be an appropriate sentence. In its said decision, the Supreme Court held that the Court of Appeal had no jurisdiction to exercise discretion on sentences that had a mandatory minimum sentence.
8. As this court was bound by the decisions of courts superior to it, its hands would have been tied regarding exercising its discretion to reduce the Applicant’s sentence.
9. This court would not, however, have been persuaded to enhance the sentence to life imprisonment, as the Respondent did not put the Applicant on notice that it would be seeking an enhancement of the sentence which would have allowed him to make an informed decision as to whether he would have wished to proceed with his appeal or if he would have wished to abandon the same. Enhancing his sentence without giving him an opportunity to respond would be contrary to the principles of fair trial provided in Article 50 of the Constitution of Kenya. All the same, the Respondent did not seek an enhancement of the sentence but had in fact conceded to the present application.
10. The above notwithstanding, this court noted that although the Applicant had indicated that he was serving five (5) years imprisonment, a perusal of the Trial Court’s proceedings showed that he was in fact sentenced to serve a three (3) years’ probation. However, at the time of writing the committals, it was indicated that he was to serve five (5) years instead of the Probation of three (3) years while his Co-Accused person who was sentenced to five (5) years was released on three (3) years’ Probation.
11. Save to state that the Applicant still walked away with a much too lenient sentence, it was a travesty of justice for him to have served a sentence that belonged to his Co-Accused person. There was gross negligence on the part of the court in making him serve a sentence that was not his. This court did not wish to say more on this matter but left the matter at the discretion of the Applicant herein on how to proceed .
12. As he ought to have served a non-custodial sentence, Section 333(2) of the Criminal Procedure Code under which his present application was premised was, therefore, not applicable in the circumstances of the case herein.
13. Indeed, Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya) provides that:-
“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 ” (emphasis court).
14. Further, Clause 4.6.20 (ix) of the Judiciary Sentencing Policy Guidelines
provides that:-
“The Sentencing Court shall be guided by the sentencing principles and objectives set out in Part I of these the Guidelines in all resentencing hearings. The following mitigating factors were set out by the Supreme Court as particularly relevant in a resentencing hearing:…
Time already spent in prison by the convict…”
15. The requirement under Section 333(2) of the Criminal Procedure Code was restated by the Court of Appeal in Ahamad Abolfathi Mohammed & Another vs Republic (Supra).
DISPOSITION
16. For the foregoing reasons, the upshot of this court’s decision was that the Applicant’s Notice of Motion application dated 10 th June 2025 and filed on 21 st October 2025 was not merited and the same be and is hereby dismissed.
17. However, as it was evident that the Applicant was erroneously committed to prison to serve five (5) years imprisonment instead of serving a non-custodial sentence of three (3) years’ Probation, it is hereby directed that the Applicant be and is hereby released from custody forthwith unless he be held for any other lawful cause as his incarceration and continued incarceration was illegal and unlawful,.
18. It is so ordered.
DATED and DELIVERED at VIHIGA this 23 rd day of February 2026
J. KAMAU
JUDGE
hccr misc appl no e031 of 20252