REPUBLIC OF KENYA
IN THE HIGH COURT AT VIHIGA
CRIMINAL MISC. APPLICATION NO. E012 OF 2026
IN THE MATTERS OF HCCRA E006/2022 AT VIHIGA
AND
IN THE MATTERS OF SECTION 329, 323, 216, 333 (2) OF THE
CRIMINAL PROCEDURE CODE
AND
IN THE MATTERS OF ARTICLE 22, 23(3), 50(2)(n), 50(2)(p), 25(c),
165(3)(a), 159 CONSTITUTION OF KENYA 2010
AND
IN THE MATTERS OF GANG RAPE C/SEC 10 OF SOA NO.3 OF 2006
SIMON ODHIAMBO………………………..…………………………….APPLICANT
VERSUS
REPUBLIC………………………………………………………………RESPONDENT
Coram:
Before Justice R. Nyakundi
Leina Davies for the State
RULING
1. Before this Court is notice of motion dated 6th March 2026, the Applicant
seeks the following orders:
a. May this count be pleased to grant the Applicant a reprieve in this his
sentence of the spend during the trial
b. May this Hon Court be pleased to hear and determine this application
c. May this Hon count to make order that the Applicant's sentence to run from
the date of arrest
d. Spent.
e. May this Hon count waive any fee/cost involved in preparation of
application and see to it that the Applicant is present during the hearing
Page 1 of 7
Criminal Misc. Application No. E012 of 2026
thereof.
2. The application is based on grounds that:
a. Section provision of 333 (2) CPC
b. Paragraph 5.1.21 sentence policy guidelines revised 2023
c. In the case of ABOLIFATHI MOHAMMEDAND ANOTHER VS REP (2018)
EKLR
d. The decree case of 88 Prisoners vs the ODPP, AG & the prison homemade
petition (Coram G.V Odunga (j)
e. The appellant is a first offender, rehabilitated, reformed, socially re-adapted
and profusely remorseful.
f. The Applicant is a poor man and in prison.
3. In support of the application is the annexed affidavit sworn by the Applicant
who deponed as follows:
a. I was arrested, charged, convicted and sentenced to serve I5 year, jail
sentence for an offence of gang rape c/sec 10 of SOA no 3 of 2006
b. That, I appealed in the 1st appellant Court at Vihiga which confirmed
conviction and upheld the sentence of 15 years’ jail sentence,
c. That I herein step again before this sea of justice with this humble
application requiring the Hon Court to be pleased to make an order that the
current sentence should run from the date of my arrest
d. That I was arrested on date of 4/1/2019 and sentenced on date of
29/3/2022. My sentence was computed from the date of sentence rather
than from the date of my arrest denying me a term already served in custody
of 3 years, 2 months and 25 days.
e. That I will suffer irreparable loss of orders sought will not be granted.
f. That is in lined with the low that a prisoner's sentence should be deemed to
stand from the date of his arrest.
Decision
4. This application is based in the provisions of Section 333(2) which provides
as follows:
Page 2 of 7
Criminal Misc. Application No. E012 of 2026
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.
5. It is imperative to mention under Article 2(5)(6) of the Constitution,
International Law forms part of sources of Kenya Law to be applied in
jurisprudential decision making. Therefore, International and Regional
Instruments generally establish that pretrial detention must be a measure of
last resort, used only when necessary and that any time spent in detention
prior to conviction must be credited towards the final sentence. This is rooted
in the presumption of innocence in line with Article 50(2)(a) of the
Constitution.
6. It cannot be denied as of early 2026, the total Prison population in Kenya is
approximately 60,740, with a significant proportion consisting of remandees
(pre-trial detainees). Therefore, the justice sector cannot overlook the aspect
of excessive and arbitrary pretrial detention as a form of human right abuse
which affects thousands of remandees as the above statistics demonstrate
and as a consequence it undermines the rule of law. It is also a fact that
persons who have been arraigned before Court as suspects to a crime are
presumed innocent until the contrary is proved by the State through the
Office of the Director of Public Prosecution. It is not about just their right to
liberty but pretrial detainees may lose their jobs if they were in gainful
employment, their families both spouses and children suffer immensely in
terms of securing their survival rights due to the long incarceration of their
bread winners where the household depends on the male spouse to make
provision financially for the basic rights. The negative impact to pretrial
detention also sets in the physical, psychological, emotional and including
some elements due to the conditions availed during their detention.
Page 3 of 7
Criminal Misc. Application No. E012 of 2026
7. This is what the former Special Rapporteur on Torture Sir Nigel Rodley
A/56/156, para 35 was referring to when he was making this statement:
There needs to be a radical transformation of assumptions in
international society about the nature of deprivation of liberty. The basic
paradigm, taken for granted over at least a century, is that prisons, police
stations and the like are closed and secret places, with activities inside
hidden from public view. The international standards referred to are
conceived of as often unwelcome exceptions to the general norm of
opacity, merely the occasional ray of light piercing the pervasive
darkness. What is needed is to replace the paradigm of opacity by one
of transparency. The assumption should be one of open access to all
places of deprivation of liberty. Of course, there will have to be
regulations to safeguard the security of the institution and individuals
within it, and measures to safeguard their privacy and dignity. But those
regulations and measures will be the exception, having to be justified as
such; the rule will be openness.
8. In the arena of International Law, the key instruments on this canon on
pretrial detention include the ICCPR (Articles 9 & 14) which protects against
arbitrarily detention and guarantees a fair trial, the 1988 body of principles,
which demands judicial oversight and credit for time served, and the Tokyo
Rules (1990) which promote using alternatives to detention as a last resort.
Whereas the regional framework is clearly crystallizing in Europe with ECHR
which prohibits excessive detention while in the American system the ACHR,
emphasizes proportionality and necessity, prohibiting mandatory detention.
The continent of Africa has also not been left behind as the African
Commission’s Luanda guidelines set strict standards for limiting pretrial
detention. In so far as the ICTY/ICTR Rule 101(C) is concerned it requires
that all time spent in custody prior to conviction and sentencing is credited
against the final sentence. See also OHCHR Human Rights and Pretrial
Page 4 of 7
Criminal Misc. Application No. E012 of 2026
detention: A Handbook of International Standards, UNODC: Detention Prior to
Adjudication and IACHR: Practical Guide on Measures to Reduce Pretrial
Detention.
9. In addition to the above instruments the following provisions are also on point
with regard to pretrial detention against an accused person who has been
charged before a Court of law but not yet released on bail as required under
Article 49 (1)(H) of the Constitution. Thus; the Standard Minimum Rules for
Non-Custodial Measures (Tokyo Rules) state that pre-trial detention “shall be”
used as a means of “last resort in criminal proceedings” (6.1); that where the
protection of society, prevention of crime, respect for law and rights of victims
are not compromised, the police or prosecution “should be empowered to
discharge the offender”. The Standard Minimum Rules for the Treatment of
Prisoners (Rules 84-93) dedicate a section to prisoners under arrest or awaiting
trial. These provisions act as guidelines for the prison authorities governing the
conditions of detention of pre-trial prisoners, the privileges to which they are
entitled and access to legal advice and assistance. In the case of young persons
in conflict with the law, the Convention on the Rights of the Child states that
the detention or imprisonment of a child shall be used “only as a measure of
last resort and for the shortest period of time” (CRC 37(b)).
10. What can be appreciated from the above legal framework is that holding
suspects in custody pretrial carries significantly additional cost and grave
risk of human rights abuse from both the Constitutional and International
Law perspective.
11. In principle it seems to be clear that where a person is suspected of having
committed an offence, is taken into custody and is subsequently convicted,
the sentence imposed should be the sentence which is appropriate for the
offence. It seems to be clear too that any time spent in custody prior to
sentencing should be fully taken into account, not simply by means of a form
of words but by means of an arithmetical deduction when assessing the
length of the sentence that is to be served from the date of sentencing.
Page 5 of 7
Criminal Misc. Application No. E012 of 2026
12. Pre-trial detention refers to the locking up of a suspect or an accused person
on criminal charges in Police and Prison custody before the completion of
their trial. Although detention pending trial should be the exception rather
than the rule, the use of pre-trial detention is prevalent in Kenya. Indeed, pre
trial detainees constitute a large proportion of the inmates causing
overcrowding at police stations and prisons. Currently, more than half of the
prisoners in prisons are on remand awaiting trial.
13. This Court also takes judicial notice that the criminal justice process
commences right from the moment of an arrest of a suspected person, and
further being subjected to investigations by the National Police Service
thereafter arraigned in Court by the Director of Public Prosecution under its
Constitutional mandate as stipulated in Article 157 (6)(7) of the Constitution.
It is at this stage the actors in the justice system focuses on the actions and
decision of the National Police Service, Correctional Services such as Prisons
and other professionals such as the Magistrates and Judges. The 2010
Constitution provides a plethora of fundamental rights and freedoms under
Chapter 4 on the Bill of Rights which are protected and guaranteed for every
citizen including an arrested person. This same Constitution emphasizes that
an arrest of a citizen is a measure of last resort and his/her rights must be
safeguarded within Article 49 of the Constitution.
14. In appreciating the law from the core of our Constitution 2010, the Criminal
Procedure Code and the International Framework governing pretrial detention
one cannot be faulted that the provisions are clear and exacting that a trial
Judge or Magistrate in considering to impose a custodial sentence must take
into account Section 333(2) of the CPC.
15. For those reasons the application by the Applicant is meritorious in so far as
discounting the pretrial detention period which is computed at three (3) years
and 85 days which shall be deemed to give credit in the subtotal of the
sentence stated to be served at the time of the verdict by the Court. What this
means is that the committal warrant shall be amended forthwith to
Page 6 of 7
Criminal Misc. Application No. E012 of 2026
incorporate credit period of 3 years and 85 days from the benefit of the
Applicant.
DATED AND DELIVERED IN VIHIGA THIS 26TH DAY OF MAY 2026.
Criminal Misc. Application No. E012 of 2026
IN THE HIGH COURT AT VIHIGA
CRIMINAL MISC. APPLICATION NO. E012 OF 2026
IN THE MATTERS OF HCCRA E006/2022 AT VIHIGA
AND
IN THE MATTERS OF SECTION 329, 323, 216, 333 (2) OF THE
CRIMINAL PROCEDURE CODE
AND
IN THE MATTERS OF ARTICLE 22, 23(3), 50(2)(n), 50(2)(p), 25(c),
165(3)(a), 159 CONSTITUTION OF KENYA 2010
AND
IN THE MATTERS OF GANG RAPE C/SEC 10 OF SOA NO.3 OF 2006
SIMON ODHIAMBO………………………..…………………………….APPLICANT
VERSUS
REPUBLIC………………………………………………………………RESPONDENT
Coram:
Before Justice R. Nyakundi
Leina Davies for the State
RULING
1. Before this Court is notice of motion dated 6th March 2026, the Applicant
seeks the following orders:
a. May this count be pleased to grant the Applicant a reprieve in this his
sentence of the spend during the trial
b. May this Hon Court be pleased to hear and determine this application
c. May this Hon count to make order that the Applicant's sentence to run from
the date of arrest
d. Spent.
e. May this Hon count waive any fee/cost involved in preparation of
application and see to it that the Applicant is present during the hearing
Page 1 of 7
Criminal Misc. Application No. E012 of 2026
thereof.
2. The application is based on grounds that:
a. Section provision of 333 (2) CPC
b. Paragraph 5.1.21 sentence policy guidelines revised 2023
c. In the case of ABOLIFATHI MOHAMMEDAND ANOTHER VS REP (2018)
EKLR
d. The decree case of 88 Prisoners vs the ODPP, AG & the prison homemade
petition (Coram G.V Odunga (j)
e. The appellant is a first offender, rehabilitated, reformed, socially re-adapted
and profusely remorseful.
f. The Applicant is a poor man and in prison.
3. In support of the application is the annexed affidavit sworn by the Applicant
who deponed as follows:
a. I was arrested, charged, convicted and sentenced to serve I5 year, jail
sentence for an offence of gang rape c/sec 10 of SOA no 3 of 2006
b. That, I appealed in the 1st appellant Court at Vihiga which confirmed
conviction and upheld the sentence of 15 years’ jail sentence,
c. That I herein step again before this sea of justice with this humble
application requiring the Hon Court to be pleased to make an order that the
current sentence should run from the date of my arrest
d. That I was arrested on date of 4/1/2019 and sentenced on date of
29/3/2022. My sentence was computed from the date of sentence rather
than from the date of my arrest denying me a term already served in custody
of 3 years, 2 months and 25 days.
e. That I will suffer irreparable loss of orders sought will not be granted.
f. That is in lined with the low that a prisoner's sentence should be deemed to
stand from the date of his arrest.
Decision
4. This application is based in the provisions of Section 333(2) which provides
as follows:
Page 2 of 7
Criminal Misc. Application No. E012 of 2026
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.
5. It is imperative to mention under Article 2(5)(6) of the Constitution,
International Law forms part of sources of Kenya Law to be applied in
jurisprudential decision making. Therefore, International and Regional
Instruments generally establish that pretrial detention must be a measure of
last resort, used only when necessary and that any time spent in detention
prior to conviction must be credited towards the final sentence. This is rooted
in the presumption of innocence in line with Article 50(2)(a) of the
Constitution.
6. It cannot be denied as of early 2026, the total Prison population in Kenya is
approximately 60,740, with a significant proportion consisting of remandees
(pre-trial detainees). Therefore, the justice sector cannot overlook the aspect
of excessive and arbitrary pretrial detention as a form of human right abuse
which affects thousands of remandees as the above statistics demonstrate
and as a consequence it undermines the rule of law. It is also a fact that
persons who have been arraigned before Court as suspects to a crime are
presumed innocent until the contrary is proved by the State through the
Office of the Director of Public Prosecution. It is not about just their right to
liberty but pretrial detainees may lose their jobs if they were in gainful
employment, their families both spouses and children suffer immensely in
terms of securing their survival rights due to the long incarceration of their
bread winners where the household depends on the male spouse to make
provision financially for the basic rights. The negative impact to pretrial
detention also sets in the physical, psychological, emotional and including
some elements due to the conditions availed during their detention.
Page 3 of 7
Criminal Misc. Application No. E012 of 2026
7. This is what the former Special Rapporteur on Torture Sir Nigel Rodley
A/56/156, para 35 was referring to when he was making this statement:
There needs to be a radical transformation of assumptions in
international society about the nature of deprivation of liberty. The basic
paradigm, taken for granted over at least a century, is that prisons, police
stations and the like are closed and secret places, with activities inside
hidden from public view. The international standards referred to are
conceived of as often unwelcome exceptions to the general norm of
opacity, merely the occasional ray of light piercing the pervasive
darkness. What is needed is to replace the paradigm of opacity by one
of transparency. The assumption should be one of open access to all
places of deprivation of liberty. Of course, there will have to be
regulations to safeguard the security of the institution and individuals
within it, and measures to safeguard their privacy and dignity. But those
regulations and measures will be the exception, having to be justified as
such; the rule will be openness.
8. In the arena of International Law, the key instruments on this canon on
pretrial detention include the ICCPR (Articles 9 & 14) which protects against
arbitrarily detention and guarantees a fair trial, the 1988 body of principles,
which demands judicial oversight and credit for time served, and the Tokyo
Rules (1990) which promote using alternatives to detention as a last resort.
Whereas the regional framework is clearly crystallizing in Europe with ECHR
which prohibits excessive detention while in the American system the ACHR,
emphasizes proportionality and necessity, prohibiting mandatory detention.
The continent of Africa has also not been left behind as the African
Commission’s Luanda guidelines set strict standards for limiting pretrial
detention. In so far as the ICTY/ICTR Rule 101(C) is concerned it requires
that all time spent in custody prior to conviction and sentencing is credited
against the final sentence. See also OHCHR Human Rights and Pretrial
Page 4 of 7
Criminal Misc. Application No. E012 of 2026
detention: A Handbook of International Standards, UNODC: Detention Prior to
Adjudication and IACHR: Practical Guide on Measures to Reduce Pretrial
Detention.
9. In addition to the above instruments the following provisions are also on point
with regard to pretrial detention against an accused person who has been
charged before a Court of law but not yet released on bail as required under
Article 49 (1)(H) of the Constitution. Thus; the Standard Minimum Rules for
Non-Custodial Measures (Tokyo Rules) state that pre-trial detention “shall be”
used as a means of “last resort in criminal proceedings” (6.1); that where the
protection of society, prevention of crime, respect for law and rights of victims
are not compromised, the police or prosecution “should be empowered to
discharge the offender”. The Standard Minimum Rules for the Treatment of
Prisoners (Rules 84-93) dedicate a section to prisoners under arrest or awaiting
trial. These provisions act as guidelines for the prison authorities governing the
conditions of detention of pre-trial prisoners, the privileges to which they are
entitled and access to legal advice and assistance. In the case of young persons
in conflict with the law, the Convention on the Rights of the Child states that
the detention or imprisonment of a child shall be used “only as a measure of
last resort and for the shortest period of time” (CRC 37(b)).
10. What can be appreciated from the above legal framework is that holding
suspects in custody pretrial carries significantly additional cost and grave
risk of human rights abuse from both the Constitutional and International
Law perspective.
11. In principle it seems to be clear that where a person is suspected of having
committed an offence, is taken into custody and is subsequently convicted,
the sentence imposed should be the sentence which is appropriate for the
offence. It seems to be clear too that any time spent in custody prior to
sentencing should be fully taken into account, not simply by means of a form
of words but by means of an arithmetical deduction when assessing the
length of the sentence that is to be served from the date of sentencing.
Page 5 of 7
Criminal Misc. Application No. E012 of 2026
12. Pre-trial detention refers to the locking up of a suspect or an accused person
on criminal charges in Police and Prison custody before the completion of
their trial. Although detention pending trial should be the exception rather
than the rule, the use of pre-trial detention is prevalent in Kenya. Indeed, pre
trial detainees constitute a large proportion of the inmates causing
overcrowding at police stations and prisons. Currently, more than half of the
prisoners in prisons are on remand awaiting trial.
13. This Court also takes judicial notice that the criminal justice process
commences right from the moment of an arrest of a suspected person, and
further being subjected to investigations by the National Police Service
thereafter arraigned in Court by the Director of Public Prosecution under its
Constitutional mandate as stipulated in Article 157 (6)(7) of the Constitution.
It is at this stage the actors in the justice system focuses on the actions and
decision of the National Police Service, Correctional Services such as Prisons
and other professionals such as the Magistrates and Judges. The 2010
Constitution provides a plethora of fundamental rights and freedoms under
Chapter 4 on the Bill of Rights which are protected and guaranteed for every
citizen including an arrested person. This same Constitution emphasizes that
an arrest of a citizen is a measure of last resort and his/her rights must be
safeguarded within Article 49 of the Constitution.
14. In appreciating the law from the core of our Constitution 2010, the Criminal
Procedure Code and the International Framework governing pretrial detention
one cannot be faulted that the provisions are clear and exacting that a trial
Judge or Magistrate in considering to impose a custodial sentence must take
into account Section 333(2) of the CPC.
15. For those reasons the application by the Applicant is meritorious in so far as
discounting the pretrial detention period which is computed at three (3) years
and 85 days which shall be deemed to give credit in the subtotal of the
sentence stated to be served at the time of the verdict by the Court. What this
means is that the committal warrant shall be amended forthwith to
Page 6 of 7
Criminal Misc. Application No. E012 of 2026
incorporate credit period of 3 years and 85 days from the benefit of the
Applicant.
DATED AND DELIVERED IN VIHIGA THIS 26TH DAY OF MAY 2026.
Criminal Misc. Application No. E012 of 2026