1. Cyrus Kingori Mwangi, Applicant, was charged and convicted for the offence of Incest contrary to Section 20(1) of the Sexual Offences Act. After full trial he was convicted and sentenced to serve Ten (10) years imprisonment. Through an undated application authenticated by the Officer incharge of Nyahururu Main Prison on 22/07/2025 he seeks orders thus:
(1) That the court invokes section 333(2) of the Criminal Procedure Code with respect to his sentence.
(2) That he is remorseful and regrets the offence committed.
2. The application is supported by an affidavit deposed by the Applicant, where he avers that the court do consider the period that was not computed as stipulated in Section 333(2) of the Criminal Procedure Code (CPC).
3. The Respondent through Ms. Mumbe, learned prosecution counsel, did not oppose the application.
4. Section 333(2) of the CPC provides that:
(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.That provision of the law applies in mandatory terms and it is the accused person’s entitlement. The court is required to state that it considered the period spent in remand and it must further deduct that period from the sentence meted out. This was stated in the case of Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR where the Court of Appeal delivered itself thus:
“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...”
6. In this case the trial court delivered itself thus:
“ Having found the accused guilty of incest and convicting him for the said offence, the court will now proceed to sentence the accused which I hereby do. The accused person is sentenced to serve Ten (10) years in prison pursuant to Section 20(2) of the SOA.”
7. Evidently, the trial court did not pronounce itself on the duration the Applicant spent in remand custody.
8. Time spent in remand custody should have been computed. It was improper for the court to omit the question of consideration of the period the Applicant spent in custody prior to being sentenced.
9.The upshot of the above is that the application which is meritorious is allowed. In the premises, the order of the court is set side and substituted with an order sentencing the Applicant to Ten (10) years imprisonment which will be effective from the date of arrest,12/01/2022.
11. It is so ordered .
(1) That the court invokes section 333(2) of the Criminal Procedure Code with respect to his sentence.
(2) That he is remorseful and regrets the offence committed.
2. The application is supported by an affidavit deposed by the Applicant, where he avers that the court do consider the period that was not computed as stipulated in Section 333(2) of the Criminal Procedure Code (CPC).
3. The Respondent through Ms. Mumbe, learned prosecution counsel, did not oppose the application.
4. Section 333(2) of the CPC provides that:
(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.That provision of the law applies in mandatory terms and it is the accused person’s entitlement. The court is required to state that it considered the period spent in remand and it must further deduct that period from the sentence meted out. This was stated in the case of Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR where the Court of Appeal delivered itself thus:
“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...”
6. In this case the trial court delivered itself thus:
“ Having found the accused guilty of incest and convicting him for the said offence, the court will now proceed to sentence the accused which I hereby do. The accused person is sentenced to serve Ten (10) years in prison pursuant to Section 20(2) of the SOA.”
7. Evidently, the trial court did not pronounce itself on the duration the Applicant spent in remand custody.
8. Time spent in remand custody should have been computed. It was improper for the court to omit the question of consideration of the period the Applicant spent in custody prior to being sentenced.
9.The upshot of the above is that the application which is meritorious is allowed. In the premises, the order of the court is set side and substituted with an order sentencing the Applicant to Ten (10) years imprisonment which will be effective from the date of arrest,12/01/2022.
11. It is so ordered .