REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KWALE
APPELLATE SIDE
(Coram: Andayi W. F, J.)
MISC. CRIMINAL APPLICATION NO. E005 OF 2025
MWACHUPA MKALLA SHANGA…………………………………………………APPLICANT
VERSUS
REPUBLIC……………………………………………………………………………..RESPONDENT
(Being an application for revision of sentence to take into account time spent in custody during trial arising from the sentence dated 12 th June 2023 by Hon. L. T. Lewa (Ms) Principal Magistrate in the Magistrates Court at Kwale Criminal Case No. (S.O) 109 of 2019)
RULING
1. The applicant Mwachupa Mkalla Shanga was convicted of the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act (Cap. 63A) Laws of Kenya . The particulars of the offence were that the applicant on diverse dates between 6 th September 2019 and 22 nd October 2019 at Mlungunipa in Diani location of Kwale County within Coast region he unlawfully and intentionally caused his penis to penetrate the vagina of U. C. M. a girl child aged 13 years. He was sentenced to serve ten (10) years’ imprisonment.
2. By this application dated 16 th April 2025, the applicant seeks an order of revision of sentence on grounds that the trial court, when sentencing him, failed to take into account the time he spent in custody during the trial. He therefore prays that this application be allowed and the time he spent in remand custody be taken into account in the sentence he is to serve and further that the sentence of imprisonment be reviewed to be non-custodial.
3. I have carefully considered the grounds of the application, the supporting affidavit sworn by the applicant on 16 th April 2025 and the process of sentencing by the trial court. The issue for this court’s determination is whether indeed the trial court failed to take into account the period the applicant spent in custody pending his trial and if so what would be the appropriate orders to grant.
4. I have looked at the proceedings of the trial court on sentencing and I find that it is true that the trial court did not pronounce itself on the issue of the time the applicant spent in custody during trial as required under section 333(2) Criminal Procedure Code (Cap. 75) Laws of Kenya.
5. Section 8(3) of the Sexual Offences Act (Cap. 63A) under which the applicant ought to have been sentenced provides that:
8(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
...
(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
6. The applicant was sentenced to serve ten years’ imprisonment. The sentence provided for under section 8(3) of the Sexual Offences Act (Cap. 63A) under which the applicant was convicted is a minimum term of twenty years’ imprisonment. That would under normal circumstances mean that the lower court passed an illegal sentence.
7. Under normal circumstances, even where the respondent is not appealing for the enhancement of the sentence as in the present case, this court would, under sections 362 and 364 of the Criminal Procedure Code (Cap. 75) Laws of Kenya be required to correct that error by imposing the correct sentence. The said sections provide in the relevant parts as follows:
S. 362: The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.
S. 364 (1)(a) In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354 , 357 and 358 , and may enhance the sentence;
(2) No order under this section shall be made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by an advocate in his own defence:
Provided that this subsection shall not apply to an order made where a subordinate court has failed to pass a sentence which it was required to pass under the written law creating the offence concerned.
(3) Where the sentence dealt with under this section has been passed by a subordinate court, the High Court shall not inflict a greater punishment for the offence which in the opinion of the High Court the accused has committed than might have been inflicted by the court which imposed the sentence.
8. The circumstances of this case are however different. At the time the applicant was convicted and sentenced, the Court of Appeal and the High Court had made interpretations of the Sexual Offences Act in several decisions finding that the mandatory minimum nature of the sentences therein which took away the court’s discretion in sentencing and were to that extent unconstitutional. The said superior courts thus routinely reviewed minimum sentences passed by lower courts to lower sentences. The lower courts being bound by the superior courts’ decisions also applied stare decisis and passed sentences that were lower than the minimum provided for by law such as happened in the present case.
9. Indeed the Court of Appeal referring to that situation recently stated in the case of Nyarigoti v Republic (Criminal Appeal 271 of 2019)[2025] KECA156(KLR)(7th February 2025) as follows;
“Turning to the second ground urged by the appellant, it is true that until recently our courts were developing a jurisprudential trajectory which impugned the constitutionality of the minimum sentences in the Sexual Offences Act on separation of powers grounds. However, that jurisprudential trajectory was snuffed out by a recent binding decision of the Supreme Court in Republic vs. Joshua Gichuki Mwangi (Petition E018 of 2023) [2024] KESC 34 (KLR) (delivered on 12th July, 2024). In that case, the Supreme Court categorically held that the mandatory minimum sentences in the Sexual Offences Act are not unconstitutional; and that trial courts have no discretion to go below the statutory minimum sentences in sexual offences.”
10. In the present case, the jurisprudence from the Court of Appeal and the High Court had changed the prescribed law on minimum sentences to provide that courts had discretion to pass appropriate sentences other than the minimum provided for under the law. It is a fact that many convicts benefitted from that jurisprudential approach and served lesser terms of imprisonment and were released.
11. The Supreme Court decision in the Republic v Mwangi case above was made on 12 th July 2024 after the trial court had passed the sentence upon the respondent on 12 th June 2023. No doubt, the trial court was relying on the jurisprudence developed by the Court of Appeal and the High Court that was obtaining at the time.
12. In view of the foregoing, it is difficult for me to find that the learned trial magistrate erred in her application of the law at the time by passing a lesser sentence than the minimum prescribed by law and that this court should correct the error by imposing the provided minimum sentence. Under the right to a fair hearing in Article 50(2)(p) of the Constitution, an accused person has a right to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing. I do not find it to be fair therefore to enhance the sentence of the respondent where the learned trial court cannot be said to have been in error.
13. The present application is for the court to have the time he spent in remand custody taken into account and possibly reduced from the time that he is due to serve imprisonment.
14. Section 333(2) Criminal Procedure Code (Cap. 75) under which the appellant files this application provides that:
333(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.
15. Explaining this provision of the law, the Court of Appeal in the case of Ahamad Abolfathi Mohammed & another v Republic [2018] KECA 743 (KLR) , held that:
“The appellants have been in custody from the date of their arrest on 19th June 2012. By dint of section 333(2) of the Criminal Procedure Code, the court was obliged to take into account the period that they had spent in custody before they were sentenced... “Taking into account” the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody.”
16. The Sentencing Policy Guidelines 2023 provide further elaboration of this provision as follows:
“2.3.18 Section 333 (2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody. Failure to do so impacts the overall period of detention which may result in a punishment that is not proportionate to the seriousness of the offence committed. This also applies to those who are charged with offences that involve minimum sentences as well as where an accused person has spent time in custody because he or she could not meet the terms of bail or bond.
2.3.19 Upon determining the period of imprisonment to impose upon an offender, the court must then deduct the period spent in custody in identifying the actual period to be served (see GATS at Part V). This period must be carefully calculated – and courts should make an enquiry particularly with unrepresented offenders – for example, there may be periods served where bail was interrupted and a short remand in custody was followed by a reissuance of bail e.g., where a surety is withdrawn, and a new surety is later found. This calculation must include time spent in police custody.”
17. Accordingly, under Section 333(2) of the Criminal Procedure Code (Cap. 75) the period served in remand from the date the appellant was arrested on 22 nd October 2019 to the date he was released from custody on a cash bail of KShs 50,000/= on 13 th January 2022, a period of two years, 2 months and 2 days is to be taken into account in computing the term of imprisonment he is to serve.
18. Since the trial court did not order that this period spent in custody pending trial be taken into account in the sentence of imprisonment for the applicant, it is only fair and just, and this court orders that the period be deducted from the appellant’s sentence of ten (10) years’ imprisonment in line with section 333(2) of the Criminal Procedure Code (Cap. 75) . An amended committal warrant to that effect shall be signed by the Deputy Registrar of this court and transmitted to the relevant prison for implementation.
19. The prayer to have the balance of the prison sentence commuted to a non-custodial sentence has no merit since the prescribed sentence of imprisonment for the offence is a minimum sentence which cannot be commuted to a non-custodial sentence. The applicant shall therefore serve and complete the sentence of imprisonment as passed by the trial court taking into account the period spent in remand custody during trial.
20. Accordingly, for the reasons set out above, I find that the application succeeds to the extent of the correction on the sentence to take into account the period of remand custody during trial.
21. It is so ordered.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual Platform, MicrosoftTeams, this 24 th day of August 2026.
This ruling is posted on the Court Case Tracking System for immediate availability of the applicant and a certified hard copy to be provided to the applicant through the Kwale prison authorities.
Vallerie for DPP.
Ummu: Court assistant.
ANDAYI W. FRANCIS
JUDGE
HC Cr. rev. No. eo05/20256/defilement-review of sentence
IN THE HIGH COURT OF KENYA AT KWALE
APPELLATE SIDE
(Coram: Andayi W. F, J.)
MISC. CRIMINAL APPLICATION NO. E005 OF 2025
MWACHUPA MKALLA SHANGA…………………………………………………APPLICANT
VERSUS
REPUBLIC……………………………………………………………………………..RESPONDENT
(Being an application for revision of sentence to take into account time spent in custody during trial arising from the sentence dated 12 th June 2023 by Hon. L. T. Lewa (Ms) Principal Magistrate in the Magistrates Court at Kwale Criminal Case No. (S.O) 109 of 2019)
RULING
1. The applicant Mwachupa Mkalla Shanga was convicted of the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act (Cap. 63A) Laws of Kenya . The particulars of the offence were that the applicant on diverse dates between 6 th September 2019 and 22 nd October 2019 at Mlungunipa in Diani location of Kwale County within Coast region he unlawfully and intentionally caused his penis to penetrate the vagina of U. C. M. a girl child aged 13 years. He was sentenced to serve ten (10) years’ imprisonment.
2. By this application dated 16 th April 2025, the applicant seeks an order of revision of sentence on grounds that the trial court, when sentencing him, failed to take into account the time he spent in custody during the trial. He therefore prays that this application be allowed and the time he spent in remand custody be taken into account in the sentence he is to serve and further that the sentence of imprisonment be reviewed to be non-custodial.
3. I have carefully considered the grounds of the application, the supporting affidavit sworn by the applicant on 16 th April 2025 and the process of sentencing by the trial court. The issue for this court’s determination is whether indeed the trial court failed to take into account the period the applicant spent in custody pending his trial and if so what would be the appropriate orders to grant.
4. I have looked at the proceedings of the trial court on sentencing and I find that it is true that the trial court did not pronounce itself on the issue of the time the applicant spent in custody during trial as required under section 333(2) Criminal Procedure Code (Cap. 75) Laws of Kenya.
5. Section 8(3) of the Sexual Offences Act (Cap. 63A) under which the applicant ought to have been sentenced provides that:
8(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
...
(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
6. The applicant was sentenced to serve ten years’ imprisonment. The sentence provided for under section 8(3) of the Sexual Offences Act (Cap. 63A) under which the applicant was convicted is a minimum term of twenty years’ imprisonment. That would under normal circumstances mean that the lower court passed an illegal sentence.
7. Under normal circumstances, even where the respondent is not appealing for the enhancement of the sentence as in the present case, this court would, under sections 362 and 364 of the Criminal Procedure Code (Cap. 75) Laws of Kenya be required to correct that error by imposing the correct sentence. The said sections provide in the relevant parts as follows:
S. 362: The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.
S. 364 (1)(a) In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354 , 357 and 358 , and may enhance the sentence;
(2) No order under this section shall be made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by an advocate in his own defence:
Provided that this subsection shall not apply to an order made where a subordinate court has failed to pass a sentence which it was required to pass under the written law creating the offence concerned.
(3) Where the sentence dealt with under this section has been passed by a subordinate court, the High Court shall not inflict a greater punishment for the offence which in the opinion of the High Court the accused has committed than might have been inflicted by the court which imposed the sentence.
8. The circumstances of this case are however different. At the time the applicant was convicted and sentenced, the Court of Appeal and the High Court had made interpretations of the Sexual Offences Act in several decisions finding that the mandatory minimum nature of the sentences therein which took away the court’s discretion in sentencing and were to that extent unconstitutional. The said superior courts thus routinely reviewed minimum sentences passed by lower courts to lower sentences. The lower courts being bound by the superior courts’ decisions also applied stare decisis and passed sentences that were lower than the minimum provided for by law such as happened in the present case.
9. Indeed the Court of Appeal referring to that situation recently stated in the case of Nyarigoti v Republic (Criminal Appeal 271 of 2019)[2025] KECA156(KLR)(7th February 2025) as follows;
“Turning to the second ground urged by the appellant, it is true that until recently our courts were developing a jurisprudential trajectory which impugned the constitutionality of the minimum sentences in the Sexual Offences Act on separation of powers grounds. However, that jurisprudential trajectory was snuffed out by a recent binding decision of the Supreme Court in Republic vs. Joshua Gichuki Mwangi (Petition E018 of 2023) [2024] KESC 34 (KLR) (delivered on 12th July, 2024). In that case, the Supreme Court categorically held that the mandatory minimum sentences in the Sexual Offences Act are not unconstitutional; and that trial courts have no discretion to go below the statutory minimum sentences in sexual offences.”
10. In the present case, the jurisprudence from the Court of Appeal and the High Court had changed the prescribed law on minimum sentences to provide that courts had discretion to pass appropriate sentences other than the minimum provided for under the law. It is a fact that many convicts benefitted from that jurisprudential approach and served lesser terms of imprisonment and were released.
11. The Supreme Court decision in the Republic v Mwangi case above was made on 12 th July 2024 after the trial court had passed the sentence upon the respondent on 12 th June 2023. No doubt, the trial court was relying on the jurisprudence developed by the Court of Appeal and the High Court that was obtaining at the time.
12. In view of the foregoing, it is difficult for me to find that the learned trial magistrate erred in her application of the law at the time by passing a lesser sentence than the minimum prescribed by law and that this court should correct the error by imposing the provided minimum sentence. Under the right to a fair hearing in Article 50(2)(p) of the Constitution, an accused person has a right to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing. I do not find it to be fair therefore to enhance the sentence of the respondent where the learned trial court cannot be said to have been in error.
13. The present application is for the court to have the time he spent in remand custody taken into account and possibly reduced from the time that he is due to serve imprisonment.
14. Section 333(2) Criminal Procedure Code (Cap. 75) under which the appellant files this application provides that:
333(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.
15. Explaining this provision of the law, the Court of Appeal in the case of Ahamad Abolfathi Mohammed & another v Republic [2018] KECA 743 (KLR) , held that:
“The appellants have been in custody from the date of their arrest on 19th June 2012. By dint of section 333(2) of the Criminal Procedure Code, the court was obliged to take into account the period that they had spent in custody before they were sentenced... “Taking into account” the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody.”
16. The Sentencing Policy Guidelines 2023 provide further elaboration of this provision as follows:
“2.3.18 Section 333 (2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody. Failure to do so impacts the overall period of detention which may result in a punishment that is not proportionate to the seriousness of the offence committed. This also applies to those who are charged with offences that involve minimum sentences as well as where an accused person has spent time in custody because he or she could not meet the terms of bail or bond.
2.3.19 Upon determining the period of imprisonment to impose upon an offender, the court must then deduct the period spent in custody in identifying the actual period to be served (see GATS at Part V). This period must be carefully calculated – and courts should make an enquiry particularly with unrepresented offenders – for example, there may be periods served where bail was interrupted and a short remand in custody was followed by a reissuance of bail e.g., where a surety is withdrawn, and a new surety is later found. This calculation must include time spent in police custody.”
17. Accordingly, under Section 333(2) of the Criminal Procedure Code (Cap. 75) the period served in remand from the date the appellant was arrested on 22 nd October 2019 to the date he was released from custody on a cash bail of KShs 50,000/= on 13 th January 2022, a period of two years, 2 months and 2 days is to be taken into account in computing the term of imprisonment he is to serve.
18. Since the trial court did not order that this period spent in custody pending trial be taken into account in the sentence of imprisonment for the applicant, it is only fair and just, and this court orders that the period be deducted from the appellant’s sentence of ten (10) years’ imprisonment in line with section 333(2) of the Criminal Procedure Code (Cap. 75) . An amended committal warrant to that effect shall be signed by the Deputy Registrar of this court and transmitted to the relevant prison for implementation.
19. The prayer to have the balance of the prison sentence commuted to a non-custodial sentence has no merit since the prescribed sentence of imprisonment for the offence is a minimum sentence which cannot be commuted to a non-custodial sentence. The applicant shall therefore serve and complete the sentence of imprisonment as passed by the trial court taking into account the period spent in remand custody during trial.
20. Accordingly, for the reasons set out above, I find that the application succeeds to the extent of the correction on the sentence to take into account the period of remand custody during trial.
21. It is so ordered.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual Platform, MicrosoftTeams, this 24 th day of August 2026.
This ruling is posted on the Court Case Tracking System for immediate availability of the applicant and a certified hard copy to be provided to the applicant through the Kwale prison authorities.
Vallerie for DPP.
Ummu: Court assistant.
ANDAYI W. FRANCIS
JUDGE
HC Cr. rev. No. eo05/20256/defilement-review of sentence