(From Original Conviction and Sentence in Kwale Magistrates’ Court Criminal Case No. 77 of 2016 delivered on 28 th June 2018 by Hon. B. Koech).
1. The application herein by Amos Mwangangi seeks a review of sentence in order for the period the applicant spent in custody prior to conviction to be taken into account in computing his sentence as provided for under section 333(2) of the Criminal Procedure Code (Cap. 75) Laws of Kenya. The only ground of the application as disclosed in the affidavit in support thereof sworn by the applicant on 4 th May 2026 is that, in the applicant’s own words, “the sentence of 20 years’ imprisonment was not proportionate with the provisions of law because section 333(2) of the Criminal Procedure Code was not adhered to rendering the sentence too harsh.
2. The Lower Court file has been placed before me and I have perused the same. I note that the applicant was convicted on 28 th June 2018 of the offence of defilement of a girl contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act (Cap. 63A) Laws of Kenya. He was sentenced to 23 years’ imprisonment which period was reduced by the High Court on appeal to 20 years’ imprisonment in Mombasa HC Cr. Appeal No. 125 of 2018.
3. I have considered the application herein. The issue for determination whether this court can review a sentence which it passed.
4. Section 333(2) CPC provides as follows:
S. 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.
5. I have looked at the trial court record and the learned trial magistrate stated thus regarding sentence:
“The minimum sentence under SOA is 20 years. Bearing in mind the circumstances I sentence the accused to 23 years’ imprisonment.”
6. The High Court on appeal stated regarding sentence that:
“Taking into consideration all the circumstances of the case, I am of the considered view that the sentence of 23 years’ imprisonment was excessive. I consider that a sentence of 20 years’ imprisonment is sufficient for the offence committed.”
7. It is apparent that both the trial court and this court on appeal did not pronounce themselves on the issue of the period the applicant had been in custody prior to his sentence.
8. I have perused the trial court file and I note from the charge sheet that the applicant was arrested on 5 th August 2016 and arraigned before trial court for plea taking on 8 th August 2016. He was granted a bond of KShs 50,000/= with two sureties of a similar amount. On 22 nd August, he appeared before the trial court for pre-trial. He was still in custody and he requested for a review of bond terms to include cash bail. His application was granted and he was ordered to post a cash bail of KShs 50,000/=.
9. On 29 th August 2016, the applicant’s surety was approved for bond and a release warrant of the same day was signed, meaning the applicant was released from custody on that day. There is no indication that he returned to custody under any other warrant until his conviction and sentence on 28 th June 2018 as per the committal warrant.
10. The applicant therefore spent the period of 24 days from 5 th August 2016 to 29 th August 2016 in remand custody otherwise also referred to as pre-trial detention. The trial court’s sentence and the committal warrant do not indicate that the pre-trial detention period was taken into account as provided for under section 333(2) of the CPC.
11. It is also apparent that when this court considered the appeal by the applicant and reduced his sentence to 20 years’ imprisonment, it did not express itself on the issue of the pre-trial detention.
12. The Court of Appeal considered the application of section 333(2) CPC in the case of Ahamad Abolfathi Mohammed and another v Republic [2018] KECA 743 (KLR) and held that:
“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. Although the learned judge stated that he had taken into account the period the appellants had been in custody, he ordered that their sentence shall take effect from the date of their conviction by the trial court. With respect, there is no evidence that the court took into account the period already spent by the appellants in custody. “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. It is not enough for the court to merely state that it has taken into account the period already spent in custody and still order the sentence to run from the date of the conviction because that amounts to ignoring altogether the period already spent in custody. It must be remembered that the proviso to section 333(2) of the Criminal Procedure Code was introduced in 2007 to give the court power to include the period already spent in custody in the sentence that it metes out to the accused person. We find that the first appellate court misdirected itself in that respect and should have directed the appellants’ sentence of imprisonment to run from the date of their arrest on 19th June 2012.”
13. I am well guided by the above decision cited by the applicant in his submissions.
14. The defining point in the present application is that the applicant is serving a sentence that was passed by this Court and not the magistrate’s court. Once an appeal is determined and a sentence either confirmed or varied, it becomes a sentence of this court. In the case of Kariuki v Republic [2019] KEHC 5480 (KLR) the applicant appealed to the High Court from a conviction for defilement under the Sexual Offences Act . . His appeal was dismissed on both conviction and sentence. The conviction and sentence were affirmed. He then went back to the High Court with a new application seeking for a review of his sentence. In dismissing the application, the High Court, Joel Ngugi, J. (Prof.)(as he then was) held that the applicant’s appeal having already been heard by the High Court he could not return to the High Court for a review of the sentence imposed and that he was at liberty to make an argument for reduced sentence at the Court of Appeal.
15. Similarly in the case of Ngatia v Republic [2022] KEHC 10807 (KLR) the High Court held, on an application for review of sentence that:
“... this court cannot and does not have jurisdiction to review the decision of a court of concurrent jurisdiction. Once this court delivered its judgment on appeal (though differently constituted), it became fanctus officio over the matter herein.”
16. The two decisions cited were dealing with applications for reduction of sentence. The present application is however different. It is calling upon the court to consider that the trial court and this court on appeal failed to take into account a provision of the law on the applicant’s sentence. I find that this is a sui generis issue that is not covered in the above and similar decisions. It is what one can consider as error on the face of the record yet there does not seem to be a provision under the CPC to correct it as is available under the Civil Procedure Rules.
17. However, if that error is not corrected, it means the applicant will spend more time in custody than he should. This no doubt compromises the applicant’s liberty. I find that the same would amount to a breach of the law which explicitly provides that time spent in custody has to be taken into account in computing the term of imprisonment to be served by a convict.
18. This court is the ultimate custodian of every person’s rights as guaranteed under the Bill of Rights in the Constitution. Article 29(a) of the Constitution provides that every person has the right to freedom and security of the person, which includes the right not to be deprived of freedom arbitrarily or without just cause. I am inclined to believe that if the applicant is to serve one more day in custody beyond the time stipulated by the law, that will amount to deprivation of his right to freedom.
19. As the custodian of the rights of a person, this court has inherent jurisdiction to prevent the breach of the person’s fundamental rights where the same are threatened with breach. The inherent power of the court may not be rooted in any statute but is derived from the common law to enable the court to act in the interest of justice, fairness, and the integrity of the judicial process. I rely on the authority of Guantai v Chief Magistrate, Nairobi [2007] KECA 496 (KLR) where the Court of Appeal observed that:
“... the High Court has an inherent power and a duty to secure fair treatment for all persons who are brought before the court or to a subordinate court and to prevent an abuse of the process of the court. This dictum is now an everyday edict in our courts and we are indeed surprised that the learned Judge was shy to so declare.”
20. What happened in this case was that both the trial court and this court made an error on the commencement date of the applicant’s sentence of imprisonment. I am satisfied that, the said error, having been brought to the attention of this court, though quite late in the day this court has a duty to correct it. It is not an error of law that would entitle the appellant to appeal to the Court of Appeal. The Court of Appeal in the above cited case went on to hold that:
“The learned trial Judge had inherent power and duty to intervene but he did not take the appropriate judicial action. In failing to do so he greatly erred and had failed to secure the appellant and the interested party a fair treatment before the subordinate court.”
21. If I am to err herein, I would rather do so on the side of caution through vindicating the applicant’s right to liberty. The period the applicant seeks to be taken into account is only a short period of 24 days but to the applicant and any other person deprived of liberty, it makes a whole difference. Denial of liberty even for one second is abhorrent as was held by the Supreme t Court of India while considering the issue of bail for an accused person in the case of Arnab Manoranjan Goswami vs The State of Maharashtra, AIR 2021 SUPREME COURT 1 that:
“... courts must ensure that they continue to remain the first line of defense against the deprivation of the liberty of citizens. Deprivation of liberty even for a single day is one day too many. We must always be mindful of the deeper systemic implications of our decisions.”
22. I therefore find that the application herein has merit and the same is allowed. The applicant shall have his term of imprisonment computed by taking into account the period of 24 days that he spent in remand custody subtracted from his sentence. The Deputy Registrar of this court shall prepare and sign an amended committal warrant factoring in the said period of 24 days.
23. Orders accordingly.
Ruling dated, signed and issued on the Judiciary Virtual Platform Microsoft Teams, this 12 th day of June 2026. The same will be transmitted to prison for delivery to the applicant.
HON. ANDAYI W. F.
JUDGE
HC Criminal Review of Sentence 7
1. The application herein by Amos Mwangangi seeks a review of sentence in order for the period the applicant spent in custody prior to conviction to be taken into account in computing his sentence as provided for under section 333(2) of the Criminal Procedure Code (Cap. 75) Laws of Kenya. The only ground of the application as disclosed in the affidavit in support thereof sworn by the applicant on 4 th May 2026 is that, in the applicant’s own words, “the sentence of 20 years’ imprisonment was not proportionate with the provisions of law because section 333(2) of the Criminal Procedure Code was not adhered to rendering the sentence too harsh.
2. The Lower Court file has been placed before me and I have perused the same. I note that the applicant was convicted on 28 th June 2018 of the offence of defilement of a girl contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act (Cap. 63A) Laws of Kenya. He was sentenced to 23 years’ imprisonment which period was reduced by the High Court on appeal to 20 years’ imprisonment in Mombasa HC Cr. Appeal No. 125 of 2018.
3. I have considered the application herein. The issue for determination whether this court can review a sentence which it passed.
4. Section 333(2) CPC provides as follows:
S. 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.
5. I have looked at the trial court record and the learned trial magistrate stated thus regarding sentence:
“The minimum sentence under SOA is 20 years. Bearing in mind the circumstances I sentence the accused to 23 years’ imprisonment.”
6. The High Court on appeal stated regarding sentence that:
“Taking into consideration all the circumstances of the case, I am of the considered view that the sentence of 23 years’ imprisonment was excessive. I consider that a sentence of 20 years’ imprisonment is sufficient for the offence committed.”
7. It is apparent that both the trial court and this court on appeal did not pronounce themselves on the issue of the period the applicant had been in custody prior to his sentence.
8. I have perused the trial court file and I note from the charge sheet that the applicant was arrested on 5 th August 2016 and arraigned before trial court for plea taking on 8 th August 2016. He was granted a bond of KShs 50,000/= with two sureties of a similar amount. On 22 nd August, he appeared before the trial court for pre-trial. He was still in custody and he requested for a review of bond terms to include cash bail. His application was granted and he was ordered to post a cash bail of KShs 50,000/=.
9. On 29 th August 2016, the applicant’s surety was approved for bond and a release warrant of the same day was signed, meaning the applicant was released from custody on that day. There is no indication that he returned to custody under any other warrant until his conviction and sentence on 28 th June 2018 as per the committal warrant.
10. The applicant therefore spent the period of 24 days from 5 th August 2016 to 29 th August 2016 in remand custody otherwise also referred to as pre-trial detention. The trial court’s sentence and the committal warrant do not indicate that the pre-trial detention period was taken into account as provided for under section 333(2) of the CPC.
11. It is also apparent that when this court considered the appeal by the applicant and reduced his sentence to 20 years’ imprisonment, it did not express itself on the issue of the pre-trial detention.
12. The Court of Appeal considered the application of section 333(2) CPC in the case of Ahamad Abolfathi Mohammed and another v Republic [2018] KECA 743 (KLR) and held that:
“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. Although the learned judge stated that he had taken into account the period the appellants had been in custody, he ordered that their sentence shall take effect from the date of their conviction by the trial court. With respect, there is no evidence that the court took into account the period already spent by the appellants in custody. “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. It is not enough for the court to merely state that it has taken into account the period already spent in custody and still order the sentence to run from the date of the conviction because that amounts to ignoring altogether the period already spent in custody. It must be remembered that the proviso to section 333(2) of the Criminal Procedure Code was introduced in 2007 to give the court power to include the period already spent in custody in the sentence that it metes out to the accused person. We find that the first appellate court misdirected itself in that respect and should have directed the appellants’ sentence of imprisonment to run from the date of their arrest on 19th June 2012.”
13. I am well guided by the above decision cited by the applicant in his submissions.
14. The defining point in the present application is that the applicant is serving a sentence that was passed by this Court and not the magistrate’s court. Once an appeal is determined and a sentence either confirmed or varied, it becomes a sentence of this court. In the case of Kariuki v Republic [2019] KEHC 5480 (KLR) the applicant appealed to the High Court from a conviction for defilement under the Sexual Offences Act . . His appeal was dismissed on both conviction and sentence. The conviction and sentence were affirmed. He then went back to the High Court with a new application seeking for a review of his sentence. In dismissing the application, the High Court, Joel Ngugi, J. (Prof.)(as he then was) held that the applicant’s appeal having already been heard by the High Court he could not return to the High Court for a review of the sentence imposed and that he was at liberty to make an argument for reduced sentence at the Court of Appeal.
15. Similarly in the case of Ngatia v Republic [2022] KEHC 10807 (KLR) the High Court held, on an application for review of sentence that:
“... this court cannot and does not have jurisdiction to review the decision of a court of concurrent jurisdiction. Once this court delivered its judgment on appeal (though differently constituted), it became fanctus officio over the matter herein.”
16. The two decisions cited were dealing with applications for reduction of sentence. The present application is however different. It is calling upon the court to consider that the trial court and this court on appeal failed to take into account a provision of the law on the applicant’s sentence. I find that this is a sui generis issue that is not covered in the above and similar decisions. It is what one can consider as error on the face of the record yet there does not seem to be a provision under the CPC to correct it as is available under the Civil Procedure Rules.
17. However, if that error is not corrected, it means the applicant will spend more time in custody than he should. This no doubt compromises the applicant’s liberty. I find that the same would amount to a breach of the law which explicitly provides that time spent in custody has to be taken into account in computing the term of imprisonment to be served by a convict.
18. This court is the ultimate custodian of every person’s rights as guaranteed under the Bill of Rights in the Constitution. Article 29(a) of the Constitution provides that every person has the right to freedom and security of the person, which includes the right not to be deprived of freedom arbitrarily or without just cause. I am inclined to believe that if the applicant is to serve one more day in custody beyond the time stipulated by the law, that will amount to deprivation of his right to freedom.
19. As the custodian of the rights of a person, this court has inherent jurisdiction to prevent the breach of the person’s fundamental rights where the same are threatened with breach. The inherent power of the court may not be rooted in any statute but is derived from the common law to enable the court to act in the interest of justice, fairness, and the integrity of the judicial process. I rely on the authority of Guantai v Chief Magistrate, Nairobi [2007] KECA 496 (KLR) where the Court of Appeal observed that:
“... the High Court has an inherent power and a duty to secure fair treatment for all persons who are brought before the court or to a subordinate court and to prevent an abuse of the process of the court. This dictum is now an everyday edict in our courts and we are indeed surprised that the learned Judge was shy to so declare.”
20. What happened in this case was that both the trial court and this court made an error on the commencement date of the applicant’s sentence of imprisonment. I am satisfied that, the said error, having been brought to the attention of this court, though quite late in the day this court has a duty to correct it. It is not an error of law that would entitle the appellant to appeal to the Court of Appeal. The Court of Appeal in the above cited case went on to hold that:
“The learned trial Judge had inherent power and duty to intervene but he did not take the appropriate judicial action. In failing to do so he greatly erred and had failed to secure the appellant and the interested party a fair treatment before the subordinate court.”
21. If I am to err herein, I would rather do so on the side of caution through vindicating the applicant’s right to liberty. The period the applicant seeks to be taken into account is only a short period of 24 days but to the applicant and any other person deprived of liberty, it makes a whole difference. Denial of liberty even for one second is abhorrent as was held by the Supreme t Court of India while considering the issue of bail for an accused person in the case of Arnab Manoranjan Goswami vs The State of Maharashtra, AIR 2021 SUPREME COURT 1 that:
“... courts must ensure that they continue to remain the first line of defense against the deprivation of the liberty of citizens. Deprivation of liberty even for a single day is one day too many. We must always be mindful of the deeper systemic implications of our decisions.”
22. I therefore find that the application herein has merit and the same is allowed. The applicant shall have his term of imprisonment computed by taking into account the period of 24 days that he spent in remand custody subtracted from his sentence. The Deputy Registrar of this court shall prepare and sign an amended committal warrant factoring in the said period of 24 days.
23. Orders accordingly.
Ruling dated, signed and issued on the Judiciary Virtual Platform Microsoft Teams, this 12 th day of June 2026. The same will be transmitted to prison for delivery to the applicant.
HON. ANDAYI W. F.
JUDGE
HC Criminal Review of Sentence 7