Omollo v Republic (Criminal Appeal 92 of 2020) [2025] KECA 1071 (KLR) (13 June 2025) (Judgment)
Neutral citation:
[2025] KECA 1071 (KLR)
Republic of Kenya
Criminal Appeal 92 of 2020
MSA Makhandia, HA Omondi & LK Kimaru, JJA
June 13, 2025
Between
George Omollo
Appellant
and
Repubic
Respondent
(Being an appeal from the judgment of the High Court of Kenya at Kisumu (D.S. Majanja, J.) dated 30th August 2016 in Criminal Appeal 120 of 2015
Criminal Appeal 120 of 2015
)
Judgment
1.The appellant, George Omollo was charged with the offence of defilement contrary to section 8 (1) as read with section 8 (3) of the Sexual Offences Act. The particulars of the offence were that on 30th January 2014 within Kisumu County, he intentionally and unlawfully caused his penis to penetrate the vagina of SO, a child aged 15 years. He was convicted and sentenced to 20 years imprisonment. His appeal to the High Court against both conviction and sentence was dismissed.
2.He is now before this Court in an appeal which is against sentence only. The main ground of appeal is that the learned Judge of the High Court erred in failing to consider, the time that he had spent in custody during the pendency of the trial.
3.At the plenary hearing, Ms. Ngire learned counsel appeared for the appellant while Mr. Okango learned prosecution counsel was present for the respondent. Ms Ngire indicated to the Court that although initially the appeal was on both conviction and sentence, the appellant did not wish to pursue the appeal on conviction but on sentence only limited to factoring in the sentence, the time the appellant spent in custody pending trial.
4.In response, Mr. Okango, learned Senior Principal Prosecution Counsel submitted that the appellant was properly convicted and lawfully sentenced and that the Court should not interfere with it. Regarding the plea that the time that the appellant spent in remand custody pending trial be taken into account in computing sentence in terms of section 333 (2) of the Criminal Procedure Code “CPC”, the respondent submitted that it is a legal requirement and he conceded the appeal limited to that aspect only. Mr. Okango, conceded to the invocation of section 333(2) of the Criminal Procedure Code and confirmed that the appellant was arrested on 10th April 2014 and while he was granted bond, he never executed the bond terms, and when he was convicted on 29th July 2015 he was in remand. Counsel urged the court to uphold the sentence of 20 years imprisonment save that it be held to start from when the appellant was arrested.
5.This being the second appeal, the Court’s duty as was held in Karingo vs. Republic (1982) KLR 213 is as follows:
6.Similarly, the Supreme Court in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) (12 July 2024) (Judgment) held that:
7.Having considered the record in light of the impugned judgment and the rival submissions presented on sentence and the Courts’ mandate, the sole issue for determination is whether the appellant is entitled to a review of sentence imposed pursuant to Section 333(2) of the CPC. That section provides inter alia:
8.Section 333 (2) of CPC requires that the period spent in custody be considered in sentencing. This Court in the case of Ahamad Abolfathi Mohammed & Sayed Mansour Mousavi vs. Republic (Criminal Appeal 135 of 2016) [2018] KECA 743 (KLR) (Crim) (26 January 2018) (Judgment) stated that:
9.The position is further espoused in the Judiciary Sentencing Policy Guidelines that:
10.The appellant was in custody from the date of his arrest on 10th April 2014 up to 29th July 2015 when he was convicted. By dint of section 333(2) of the CPC, the trial court was obliged to take into account the period that he had spent in custody before he was sentenced which it did not. The appellant is asking this Court to determine that the time of his sentence should start to run from 10th April 2014 when he was arrested.
11.The appellant’s request has not been opposed by the respondent. In any case, it is consistent with the proviso to Section 333(2) of the Criminal Procedure Code which allows the consideration of the period spent in custody before his conviction and thus, the appellant’s sentence of 20 years imprisonment shall commence on 10th April 2014, the date that he was arrested and remanded in custody. The appeal thus succeeds to that very limited extent only.
DATED AND DELIVERED AT KISUMU THIS 13TH DAY OF JUNE, 2025.ASIKE-MAKHANDIA..........................................JUDGE OF APPEALH. A. OMONDI...........................................JUDGE OF APPEALL. KIMARU...........................................JUDGE OF APPEALI certify that this is a true copy of the originalDEPUTY REGISTRAR