Jurisdiction:
File Number:
Between: Coram:
Heard:
Delivered:
In the High Court at Bungoma
HCC Misc.App No . E040/2026.
Bramwel Wanjala Wabwire V s ODPP
Hon. R.K. Ondieki, J.
20 th May, 2026.
21 st May, 2026.
Citations:
1. Rwabugande Moses Vs Uganda [2017] UGSC 8.
2. Ahamad Abolfathi Mohammed & Another Vs Republic [2018] eKLR.
3. Bethwel Wilson Kibor Vs Republic [2009] eKLR.
4. The Judiciary Sentencing Policy Guidelines.
RULING OF COURT:
1. In the famous case often cited in respect to our similar provision under section 333(2) of the Criminal Procedure Code is the case of Rwabugande Moses Vs Uganda [2017] UGSC 8 , the Supreme Court held that a sentence arrived at without taking into consideration the period spent on remand is illegal for failure with a mandatory constitutional provision.
2. In his application dated 6 th March, 2026 by the applicant is seeking the following prayers; That the court be pleased to certify the application as urgent and the same to be heard on priority basis, that the applicant is pleading to court to invoke the provisions of section 33(2) of the Criminal Procedure Code to pronounce the sentence from the date of arrest, that the applicant was charged with the offence under section 8(1)(4) of the Sexual Offences Act No. 3/2006 and sentenced to serve 15 years in prison, that this Honourable court be guided by the spirit of the Constitution and other laws to grant the prayer without discrimination of any kind.
3. The application is supported by the affidavit which reiterate the same grounds set out on the body of the application. I do not find it necessary to repeat them.
4. The prosecution on the other hand, did not oppose the application.
Analysis and Determination:
5. Section 333(2) enacts; A warrant under the hand of the judge or magistrate by whom a person is sentenced to imprisonment, ordering that the sentence shall be carried out in any prison within Kenya, shall be issued by the sentencing judge or magistrate, and shall be full authority to the officer in charge of the prison and to all other persons for carrying into effect the sentence described in the warrant, not being a sentence of death. (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 .
6. It is clear from the provisions that a Judge or a Magistrate in sentencing, is obligated to compute the term in a manner skewed to benefit the convictee with a lesser sentence by giving credit to the period spent in pre-trial detention. In the proceedings herein, do not disclose whether the Appellant was released from police custody and indeed from remand the entire period he was arrested to conviction and sentence. The charge sheet show that the appellant was arrested on 25 th October 2021 and spent in custody till 1 st July, 2022.
7. The provisions of section 333(2) of the Criminal Procedure Code was the subject of the decision in Ahamad Abolfathi Mohammed & Another vs Republic [2018]eKLR where the Court of Appeal held that: - “The second is the failure by the court to take into account in a meaningful way, the period that the appellants had spent in custody as required by section 333(2) of the Criminal Procedure Code. 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 19 th June 2012.”
8. The same court in Bethwel Wilson Kibor vs Republic [2009] eKLR expressed itself as follows: - “By proviso to section 333(2) of the Criminal Procedure Code where a person sentenced has been held in custody prior to such sentence, the sentence shall take into account of the period spent in custody. Ombija J, who sentenced the appellant did not specifically state that he had taken into account the 9 years period that the appellant had been in custody. The appellant told us that as at 22 nd September 2009 he had been in custody for 10 years and one month. We think that all these incidents ought to have been taken into account in assessing sentence. In view of the foregoing, we are satisfied that the appellant has been sufficiently punished. We therefore allow this appeal and reduce the sentence to the period that the appellant has already served. He is accordingly to be set free forthwith unless otherwise lawfully held.”
9. According to The Judiciary Sentencing Policy Guidelines: “The proviso to section 333(2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody if the convicted person had been in custody during the trial. Failure to do so impacts on the overall period of detention which may result in an excessive punishment that is not proportional to the offence committed. In determining the period of imprisonment that should be served by an offender, the court must take into account the period in which the offender was held in custody during the trial.”
10. It is clear from the provisions that a Judge or a Magistrate in sentencing, is obligated to compute the term in a manner skewed to benefit the convictee with a lesser sentence by giving credit to the period spent in pre-trial detention. The proceedings herein, do not disclose whether the Appellant was released from police custody and indeed from remand the entire period he was arrested to conviction and sentence. The charge sheet show that the appellant was arrested on 25 th October 2021 and spent in custody till 1 st July, 2022.
11. I n disposal, the application by the appellant is allowed as prayed. For avoidance of doubt, the committal warrant shall be amended for the time spent in custody computed as Eight (8) months and Six (6) days be credited as a remission for him to have an early release custody.
Orders Accordingly.
Delivered virtually on 21 st May, 2026 in the presence of Miss Matere for the ODPP, Appellant in person and C/A Aziza Abdi.
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File Number:
Between: Coram:
Heard:
Delivered:
In the High Court at Bungoma
HCC Misc.App No . E040/2026.
Bramwel Wanjala Wabwire V s ODPP
Hon. R.K. Ondieki, J.
20 th May, 2026.
21 st May, 2026.
Citations:
1. Rwabugande Moses Vs Uganda [2017] UGSC 8.
2. Ahamad Abolfathi Mohammed & Another Vs Republic [2018] eKLR.
3. Bethwel Wilson Kibor Vs Republic [2009] eKLR.
4. The Judiciary Sentencing Policy Guidelines.
RULING OF COURT:
1. In the famous case often cited in respect to our similar provision under section 333(2) of the Criminal Procedure Code is the case of Rwabugande Moses Vs Uganda [2017] UGSC 8 , the Supreme Court held that a sentence arrived at without taking into consideration the period spent on remand is illegal for failure with a mandatory constitutional provision.
2. In his application dated 6 th March, 2026 by the applicant is seeking the following prayers; That the court be pleased to certify the application as urgent and the same to be heard on priority basis, that the applicant is pleading to court to invoke the provisions of section 33(2) of the Criminal Procedure Code to pronounce the sentence from the date of arrest, that the applicant was charged with the offence under section 8(1)(4) of the Sexual Offences Act No. 3/2006 and sentenced to serve 15 years in prison, that this Honourable court be guided by the spirit of the Constitution and other laws to grant the prayer without discrimination of any kind.
3. The application is supported by the affidavit which reiterate the same grounds set out on the body of the application. I do not find it necessary to repeat them.
4. The prosecution on the other hand, did not oppose the application.
Analysis and Determination:
5. Section 333(2) enacts; A warrant under the hand of the judge or magistrate by whom a person is sentenced to imprisonment, ordering that the sentence shall be carried out in any prison within Kenya, shall be issued by the sentencing judge or magistrate, and shall be full authority to the officer in charge of the prison and to all other persons for carrying into effect the sentence described in the warrant, not being a sentence of death. (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 .
6. It is clear from the provisions that a Judge or a Magistrate in sentencing, is obligated to compute the term in a manner skewed to benefit the convictee with a lesser sentence by giving credit to the period spent in pre-trial detention. In the proceedings herein, do not disclose whether the Appellant was released from police custody and indeed from remand the entire period he was arrested to conviction and sentence. The charge sheet show that the appellant was arrested on 25 th October 2021 and spent in custody till 1 st July, 2022.
7. The provisions of section 333(2) of the Criminal Procedure Code was the subject of the decision in Ahamad Abolfathi Mohammed & Another vs Republic [2018]eKLR where the Court of Appeal held that: - “The second is the failure by the court to take into account in a meaningful way, the period that the appellants had spent in custody as required by section 333(2) of the Criminal Procedure Code. 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 19 th June 2012.”
8. The same court in Bethwel Wilson Kibor vs Republic [2009] eKLR expressed itself as follows: - “By proviso to section 333(2) of the Criminal Procedure Code where a person sentenced has been held in custody prior to such sentence, the sentence shall take into account of the period spent in custody. Ombija J, who sentenced the appellant did not specifically state that he had taken into account the 9 years period that the appellant had been in custody. The appellant told us that as at 22 nd September 2009 he had been in custody for 10 years and one month. We think that all these incidents ought to have been taken into account in assessing sentence. In view of the foregoing, we are satisfied that the appellant has been sufficiently punished. We therefore allow this appeal and reduce the sentence to the period that the appellant has already served. He is accordingly to be set free forthwith unless otherwise lawfully held.”
9. According to The Judiciary Sentencing Policy Guidelines: “The proviso to section 333(2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody if the convicted person had been in custody during the trial. Failure to do so impacts on the overall period of detention which may result in an excessive punishment that is not proportional to the offence committed. In determining the period of imprisonment that should be served by an offender, the court must take into account the period in which the offender was held in custody during the trial.”
10. It is clear from the provisions that a Judge or a Magistrate in sentencing, is obligated to compute the term in a manner skewed to benefit the convictee with a lesser sentence by giving credit to the period spent in pre-trial detention. The proceedings herein, do not disclose whether the Appellant was released from police custody and indeed from remand the entire period he was arrested to conviction and sentence. The charge sheet show that the appellant was arrested on 25 th October 2021 and spent in custody till 1 st July, 2022.
11. I n disposal, the application by the appellant is allowed as prayed. For avoidance of doubt, the committal warrant shall be amended for the time spent in custody computed as Eight (8) months and Six (6) days be credited as a remission for him to have an early release custody.
Orders Accordingly.
Delivered virtually on 21 st May, 2026 in the presence of Miss Matere for the ODPP, Appellant in person and C/A Aziza Abdi.
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