RULING
1. Before court is an application by way of Notice of Motion dated 3 rd November, 2025 and brought under Sections 362 and 364 of the Criminal Procedure Code, Articles 27, 28, 29(1) and 165(3)(b) of the Constitution 2020 and all other enabling provisions of the law. The Applicant sought for orders:-
a) Spent
b) THAT this Honourable Court be pleased to review the Sentence to pay a fine of Kshs.46,500,000/- in default to serve Twenty years imprisonment imposed on the Applicant on 25 th September, 2025.
c) THAT this Honourable Court grants the Applicants prayer to review the sentence and file his application submissions, herein attached.
d) THAT the Honourable Court be pleased to issue any other orders that it may deem fit under the circumstances.
2. The application is premised on the face of the application and on the grounds set out in the supporting affidavit of OKWUDILI CLETUS ONUH a prisoner at Nairobi Remand and Allocation Maximum Security Prison.
3. The Applicant in his affidavit in support of his application deposed that on the 25/03/2022 he was arraigned before the Kahawa Magistrates Court in charged with the offence of Trafficking by storage in Narcotics Drugs c/s 4(a) (3) of the Narcotics Drugs and Psychotropic Substances (Control) Act.
4. Due to constant medication after having undergone surgery the Applicant out of his own volition decided to change plea and pleaded guilty. The trial court proceeded to sentence him to pay a fine of Kshs.46.000,000/- and in default to serve a term of Twenty years imprisonment on 25/09/2025.
5. The trial court totally disregarded his mitigation, his medical condition and the fact that by pleading guilty he had saved on the court’s valuable resource of time. The Applicant also contends that the trial court failed to consider the period of Three (3) years and Six (6) months spent in custody when rendering its sentence. This was contrary to Section 333(2) of the Criminal Procedure as such it is only just and fair that this Court takes this into consideration.
6. The Applicant relies on the Constitutional provisions that gie this Court jurisdiction to this Honourable Court to hear and determine applications of this nature on matters of equal opportunity before the law and aright to access justice.
ISSUES FOR DETERMINATION
7. Having considered the application by the Applicant the only issue arising for determination is whether the court considered Section 333(2) of the CPC while rendering its sentence.
ANALYSIS AND DETERMINATION
8. The applicant herein contends that the Kahawa Court at CMCC Number Criminal Case in E034 of 2022 while rendering its sentence failed to take into account the period of 3 years and 6 months that he spent in custody contrary to Section 333(2) of the Criminal Procedure Code.
9. Section 333 (2) of the Criminal Procedure Code provides thus:-
(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.
10. Reference is made to the case of Bethwel Wilson Kibor vs. Republic (2009) eKLR where the court had this to say with regard to Section 333(2) of the CPC:-
“By proviso to Section 333(2) of Criminal Procedure Code where a person sentenced has been held in custody prior to such sentence, the sentence shall take 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 ten 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.”
11. Similarly, the Judiciary Sentencing Policy Guidelines state as follows in respect to Section 333 (2) of the CPC:-
1. 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.
2. 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.
12. A thorough perusal of the ruling on sentence by the trial court delivered on 25/09/2025 indicates that the Applicant was given a fine of Kshs.46,500,000/- with a default custodial sentence of Twenty (20) years with no order that the period spent in remand being Three (3) years and Six (6) months to be deducted from the sentence.
13. In the circumstances, this Court finds that this is a suitable case for revision as the trial court failed to fully apply the requirements under Section 333 (2) during sentencing, therefore, the application herein is found to have merit and it is hereby allowed.
FINDINGS AND DETERMINATION
14. For the forgoing reasons this Court finds that the application has merit and it is hereby allowed.
15. The period of Three (3) years and Six (6) months spent in remand from 25/03/2022 be and is hereby deducted from the sentence.
Orders Accordingly
DATED SIGNED and DELIVERED via TEAMS at KIAMBU this 21 st day of JANUARY, 2026.
A. MSHILA
JUDGE
In the presence of;
Sanja-Court Assistant
Applicant-present from Nairobi West
Gacharia-for the State
1. Before court is an application by way of Notice of Motion dated 3 rd November, 2025 and brought under Sections 362 and 364 of the Criminal Procedure Code, Articles 27, 28, 29(1) and 165(3)(b) of the Constitution 2020 and all other enabling provisions of the law. The Applicant sought for orders:-
a) Spent
b) THAT this Honourable Court be pleased to review the Sentence to pay a fine of Kshs.46,500,000/- in default to serve Twenty years imprisonment imposed on the Applicant on 25 th September, 2025.
c) THAT this Honourable Court grants the Applicants prayer to review the sentence and file his application submissions, herein attached.
d) THAT the Honourable Court be pleased to issue any other orders that it may deem fit under the circumstances.
2. The application is premised on the face of the application and on the grounds set out in the supporting affidavit of OKWUDILI CLETUS ONUH a prisoner at Nairobi Remand and Allocation Maximum Security Prison.
3. The Applicant in his affidavit in support of his application deposed that on the 25/03/2022 he was arraigned before the Kahawa Magistrates Court in charged with the offence of Trafficking by storage in Narcotics Drugs c/s 4(a) (3) of the Narcotics Drugs and Psychotropic Substances (Control) Act.
4. Due to constant medication after having undergone surgery the Applicant out of his own volition decided to change plea and pleaded guilty. The trial court proceeded to sentence him to pay a fine of Kshs.46.000,000/- and in default to serve a term of Twenty years imprisonment on 25/09/2025.
5. The trial court totally disregarded his mitigation, his medical condition and the fact that by pleading guilty he had saved on the court’s valuable resource of time. The Applicant also contends that the trial court failed to consider the period of Three (3) years and Six (6) months spent in custody when rendering its sentence. This was contrary to Section 333(2) of the Criminal Procedure as such it is only just and fair that this Court takes this into consideration.
6. The Applicant relies on the Constitutional provisions that gie this Court jurisdiction to this Honourable Court to hear and determine applications of this nature on matters of equal opportunity before the law and aright to access justice.
ISSUES FOR DETERMINATION
7. Having considered the application by the Applicant the only issue arising for determination is whether the court considered Section 333(2) of the CPC while rendering its sentence.
ANALYSIS AND DETERMINATION
8. The applicant herein contends that the Kahawa Court at CMCC Number Criminal Case in E034 of 2022 while rendering its sentence failed to take into account the period of 3 years and 6 months that he spent in custody contrary to Section 333(2) of the Criminal Procedure Code.
9. Section 333 (2) of the Criminal Procedure Code provides thus:-
(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.
10. Reference is made to the case of Bethwel Wilson Kibor vs. Republic (2009) eKLR where the court had this to say with regard to Section 333(2) of the CPC:-
“By proviso to Section 333(2) of Criminal Procedure Code where a person sentenced has been held in custody prior to such sentence, the sentence shall take 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 ten 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.”
11. Similarly, the Judiciary Sentencing Policy Guidelines state as follows in respect to Section 333 (2) of the CPC:-
1. 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.
2. 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.
12. A thorough perusal of the ruling on sentence by the trial court delivered on 25/09/2025 indicates that the Applicant was given a fine of Kshs.46,500,000/- with a default custodial sentence of Twenty (20) years with no order that the period spent in remand being Three (3) years and Six (6) months to be deducted from the sentence.
13. In the circumstances, this Court finds that this is a suitable case for revision as the trial court failed to fully apply the requirements under Section 333 (2) during sentencing, therefore, the application herein is found to have merit and it is hereby allowed.
FINDINGS AND DETERMINATION
14. For the forgoing reasons this Court finds that the application has merit and it is hereby allowed.
15. The period of Three (3) years and Six (6) months spent in remand from 25/03/2022 be and is hereby deducted from the sentence.
Orders Accordingly
DATED SIGNED and DELIVERED via TEAMS at KIAMBU this 21 st day of JANUARY, 2026.
A. MSHILA
JUDGE
In the presence of;
Sanja-Court Assistant
Applicant-present from Nairobi West
Gacharia-for the State