1. The Applicant was convicted by the Senior Resident Magistrate, Kericho, in Criminal Case No. E002 of 2022. He was sentenced on 4th October 2022 to fifteen 15 years' imprisonment for incest contrary to Section 20(1) of the Sexual Offences Act.
2. Being dissatisfied with the said decision, he appealed against both conviction and sentence in HCCRA No. E034 of 2022. Karanjah J. delivered judgment on 12th April 2024. The conviction was upheld. However, the sentence was reduced to eight (8) years' imprisonment. The appeal was otherwise dismissed.
3. The Applicant now brings this application under Section 333(2) of the Criminal Procedure Code. He does not challenge his conviction or sentence. He states only that the time he spent in remand was not factored into the sentence and, in the alternative, for probation, a non-custodial sentence or a community service order.
4. The Respondent does not oppose verification of compliance with Section 333(2) but only opposes the alternative prayers for probation and a non-custodial sentence.
Analysis.
5. The first question that this court must deal with is the issue of jurisdiction. In Kinyaga v Republic [2025] KEHC 5676 (KLR), the Court held that an appeal must address all a party’s grounds on sentence. Once sentence is pronounced on appeal, the appellant cannot return to the same court or a concurrent court for further review. That would permit litigation in piecemeal.
6. In the case of Daniel Otieno Oracha v Republic [2019] eKLR, where the Petitioner had applied for review of a sentence imposed by a court of concurrent jurisdiction and while holding that the court did not have jurisdiction to review the said Judgment, the court observed that: -
“The law abhors that practice of a Judge sitting to review a Judgment or decision of another Judge of concurrent jurisdiction. Reduction of sentence could only be considered by the Court of Appeal or if this court was sitting on appeal of a Judgment of the subordinate court or if the Petitioner was seeking for resentence after exhausting appeal mechanisms and not otherwise......”
7. The sentence in issue here is not the trial court’s original sentence. It is the sentence as varied on appeal in HCCRA E034 of 2022. The appellate court reviewed and substituted the sentence. This Court, being of concurrent jurisdiction with the appellate court, cannot revisit that sentence. Section 333(2) of the Criminal Procedure Code enjoins courts to take into account the period the accused has spent in lawful custody while meting out sentence . The convict herein was first arraigned in court on 7.3.22 and on 4.10.22 . It is clear that the applicant spent about 7 months in remand, and the same was not taken into account during sentencing. I direct that the same be taken into account in computation of the sentence.
8. The prayers for probation, a non-custodial sentence or community service fall outside the scope of Section 333(2) . I decline to grant the same
. Findings & Determinations.
9. . Having considered all the above, this Court makes the following findings and determination:
i. This Court has no jurisdiction to reopen or vary the sentence pronounced in HCCRA No. E034 of 2022.
ii. The sentence of the Applicant to run from 7.3.22 when he was first arraigned in court till completion in full .
iv. The Applicant’s application has partially succeeded
It is so ordered.
T. A ODERA.
JUDGE
21.7.26
DATED, SIGNED AND DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 21ST DAY OF JULY 2026 IN THE PRESENCE OF :
Busienei : Court Assistant.
Maundu : Prosecution Counsel.
Applicant
2 | Page
2. Being dissatisfied with the said decision, he appealed against both conviction and sentence in HCCRA No. E034 of 2022. Karanjah J. delivered judgment on 12th April 2024. The conviction was upheld. However, the sentence was reduced to eight (8) years' imprisonment. The appeal was otherwise dismissed.
3. The Applicant now brings this application under Section 333(2) of the Criminal Procedure Code. He does not challenge his conviction or sentence. He states only that the time he spent in remand was not factored into the sentence and, in the alternative, for probation, a non-custodial sentence or a community service order.
4. The Respondent does not oppose verification of compliance with Section 333(2) but only opposes the alternative prayers for probation and a non-custodial sentence.
Analysis.
5. The first question that this court must deal with is the issue of jurisdiction. In Kinyaga v Republic [2025] KEHC 5676 (KLR), the Court held that an appeal must address all a party’s grounds on sentence. Once sentence is pronounced on appeal, the appellant cannot return to the same court or a concurrent court for further review. That would permit litigation in piecemeal.
6. In the case of Daniel Otieno Oracha v Republic [2019] eKLR, where the Petitioner had applied for review of a sentence imposed by a court of concurrent jurisdiction and while holding that the court did not have jurisdiction to review the said Judgment, the court observed that: -
“The law abhors that practice of a Judge sitting to review a Judgment or decision of another Judge of concurrent jurisdiction. Reduction of sentence could only be considered by the Court of Appeal or if this court was sitting on appeal of a Judgment of the subordinate court or if the Petitioner was seeking for resentence after exhausting appeal mechanisms and not otherwise......”
7. The sentence in issue here is not the trial court’s original sentence. It is the sentence as varied on appeal in HCCRA E034 of 2022. The appellate court reviewed and substituted the sentence. This Court, being of concurrent jurisdiction with the appellate court, cannot revisit that sentence. Section 333(2) of the Criminal Procedure Code enjoins courts to take into account the period the accused has spent in lawful custody while meting out sentence . The convict herein was first arraigned in court on 7.3.22 and on 4.10.22 . It is clear that the applicant spent about 7 months in remand, and the same was not taken into account during sentencing. I direct that the same be taken into account in computation of the sentence.
8. The prayers for probation, a non-custodial sentence or community service fall outside the scope of Section 333(2) . I decline to grant the same
. Findings & Determinations.
9. . Having considered all the above, this Court makes the following findings and determination:
i. This Court has no jurisdiction to reopen or vary the sentence pronounced in HCCRA No. E034 of 2022.
ii. The sentence of the Applicant to run from 7.3.22 when he was first arraigned in court till completion in full .
iv. The Applicant’s application has partially succeeded
It is so ordered.
T. A ODERA.
JUDGE
21.7.26
DATED, SIGNED AND DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 21ST DAY OF JULY 2026 IN THE PRESENCE OF :
Busienei : Court Assistant.
Maundu : Prosecution Counsel.
Applicant
2 | Page