R epublic of Kenya
In the High Court of Kenya at Makueni
Misc. Criminal Application no E046 of 2024
Justin Mwololo Ndivo vs Republic
Ruling
The applicant was charged , tried and convicted for defilement in Makindu MCCRC (SO) No. 554 of 2012
He was sentenced to 20 years imprisonment on 7 th June 2013.
He has brought this application dated 27 th June 2024 seeking the application of s. 333(2) of the Criminal Procedure Code to his case on the argument that he was arrested on 8 th July 2012 and spent a year in custody before he was convicted.
S. 333 of the Criminal Procedure Code states:
(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.
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
I have perused the record of the lower court.
In rendering the sentence on 7 th June 2013, the learned trial magistrate considered the mitigation by the applicant and stated:
...the accused be and is hereby sentenced to 20 years imprisonment .
The trial court did not take into account the period the applicant had spent in custody.
In the circumstances , the application is merited .
The application is allowed and the applicant's sentence of 20 years will run from 8 th July 2012
Ruling dated signed and delivered virtually this 4 th December 2025.
Mumbua T Matheka
Judge
CA Chrispol
C/Pros Kazungu
Applicant Present
In the High Court of Kenya at Makueni
Misc. Criminal Application no E046 of 2024
Justin Mwololo Ndivo vs Republic
Ruling
The applicant was charged , tried and convicted for defilement in Makindu MCCRC (SO) No. 554 of 2012
He was sentenced to 20 years imprisonment on 7 th June 2013.
He has brought this application dated 27 th June 2024 seeking the application of s. 333(2) of the Criminal Procedure Code to his case on the argument that he was arrested on 8 th July 2012 and spent a year in custody before he was convicted.
S. 333 of the Criminal Procedure Code states:
(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.
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
I have perused the record of the lower court.
In rendering the sentence on 7 th June 2013, the learned trial magistrate considered the mitigation by the applicant and stated:
...the accused be and is hereby sentenced to 20 years imprisonment .
The trial court did not take into account the period the applicant had spent in custody.
In the circumstances , the application is merited .
The application is allowed and the applicant's sentence of 20 years will run from 8 th July 2012
Ruling dated signed and delivered virtually this 4 th December 2025.
Mumbua T Matheka
Judge
CA Chrispol
C/Pros Kazungu
Applicant Present