The applicant John Masika Munialo vide notice of motion 9 th March, 2026, supported by the Affidavit of John Masika Munialo of same date sought orders i nteria that this court be pleased to call for the record, and review the sentence meted on the applicant by computing the provisions of section 333(2) of the Criminal Procedure Code into the sentence of 30 years (sic).
(From the record:- it is not 30 years, it is a fine of 50,000/= in default 2 years imprisonment).
The prosecutor M/s Koech confirms that the Applicant served his submission upon the Respondent on 4/5/2026. She further concedes that upon perusal of the record of the trial court, the trial court did not express itself on the period the Appellant had spent in custody.
In the submissions, the Applicant was clear that, he was not contesting the length of the sentence but seeks the benefit of section 333(2) of the Criminal Procedure Code.
I have examined the record of the lower court and confirm that the Applicant took plea on 22/4/2025. He was granted a bond of Kshs. 200,000/- plus a surety of similar amount or cash bail of Kshs. 100,000/- with two contact persons.
There is no indication in the court record that the Appellant secured the release on bond or bail. On 10/12/2025 he pleaded guilty pursuant to a plea bargaining agreement and was sentenced by the court.
Hon. D. Milimu (SRM) who stated as follows:-
“ The accused is discharged in other count, pursuant to plea agreement, he is hereby sentenced to pay a fine of Kshs. 50,000/- in default to serve two (2) years imprisonment. Fourteen (14) days right of appeal.”
From the record, it is manifest that the Appellant did even request the court during mitigation to consider the period he had spent in custody. He stated in mitigation;
“ I pray the court looks at the time I stayed in custody. I have children, one was through CS. My wife is unable to work.
I pray the court looks at it. So that I take care of my children. My wife is unwell.”
The key part to note here is that despite the Appellant reminding the court to consider the period he had spent in custody, the court did not consider the period he had spent in custody, the court did not bother to apply the provisions of section 333 (2) of the Criminal Procedure Code to give the appellant that benefit.
I note that the sentence was meted pursuant to a plea barging agreement, but the sentence recommended remains only a recommendation and does not take away the discretion of court during sentence, and in this case, it was even very critical because the Appellant was appealing to court to consider or apply a provision of the law, which was not done by the court.
I find therefore one that the court denied the benefit of section 333(2) to the Applicant in the manner it proceeded to mete out the sentence.
I thus direct that the sentence meted by Hon. D. Milimu (SRM) on 10/12/2025 be varried and reduced so as to commence from the period the appellant took plea, that is, to run from 22/4/2025 and not 10/12/2025.
Dated, signed and delivered virtually at Thika this 11 th day of May, 2026.
...............................................
L. N. MUGAMBI
JUDGE
HCCR REV. E016/2026 2 | Page
(From the record:- it is not 30 years, it is a fine of 50,000/= in default 2 years imprisonment).
The prosecutor M/s Koech confirms that the Applicant served his submission upon the Respondent on 4/5/2026. She further concedes that upon perusal of the record of the trial court, the trial court did not express itself on the period the Appellant had spent in custody.
In the submissions, the Applicant was clear that, he was not contesting the length of the sentence but seeks the benefit of section 333(2) of the Criminal Procedure Code.
I have examined the record of the lower court and confirm that the Applicant took plea on 22/4/2025. He was granted a bond of Kshs. 200,000/- plus a surety of similar amount or cash bail of Kshs. 100,000/- with two contact persons.
There is no indication in the court record that the Appellant secured the release on bond or bail. On 10/12/2025 he pleaded guilty pursuant to a plea bargaining agreement and was sentenced by the court.
Hon. D. Milimu (SRM) who stated as follows:-
“ The accused is discharged in other count, pursuant to plea agreement, he is hereby sentenced to pay a fine of Kshs. 50,000/- in default to serve two (2) years imprisonment. Fourteen (14) days right of appeal.”
From the record, it is manifest that the Appellant did even request the court during mitigation to consider the period he had spent in custody. He stated in mitigation;
“ I pray the court looks at the time I stayed in custody. I have children, one was through CS. My wife is unable to work.
I pray the court looks at it. So that I take care of my children. My wife is unwell.”
The key part to note here is that despite the Appellant reminding the court to consider the period he had spent in custody, the court did not consider the period he had spent in custody, the court did not bother to apply the provisions of section 333 (2) of the Criminal Procedure Code to give the appellant that benefit.
I note that the sentence was meted pursuant to a plea barging agreement, but the sentence recommended remains only a recommendation and does not take away the discretion of court during sentence, and in this case, it was even very critical because the Appellant was appealing to court to consider or apply a provision of the law, which was not done by the court.
I find therefore one that the court denied the benefit of section 333(2) to the Applicant in the manner it proceeded to mete out the sentence.
I thus direct that the sentence meted by Hon. D. Milimu (SRM) on 10/12/2025 be varried and reduced so as to commence from the period the appellant took plea, that is, to run from 22/4/2025 and not 10/12/2025.
Dated, signed and delivered virtually at Thika this 11 th day of May, 2026.
...............................................
L. N. MUGAMBI
JUDGE
HCCR REV. E016/2026 2 | Page