' REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KIAMBU
CRIMINAL REVISION NO. E022 OF 2025
DAVID MICHAEL THIONGO KAMOTHO………………..APPLICANT
VERSUS
REPUBLIC………………………………………………………RESPONDENT
RULING
Before Court is an application by way of Notice of Motion dated 26 th February, 2025 and brought under Sections 333(2) of the Criminal Procedure Code and Article 165(3) of the Constitution; The Applicant sought for orders:-
THAT this Honourable Court be pleased to take account of the period the applicant spent in custody during the pendency of the trial.
THAT this Honourable Court to commute the custodial sentence to a non-custodial sentence.
Such further relief that the Court may deem fit and just to grant.
The application is grounded on the facts on the face of the application and on the applicants affidavit in support of the application; He deposed that he was charged with the offence of Being in possession of Narcotic Drugs in Githunguri Criminal Case No. E474 of 2022 and was sentenced to serve Ten (10) years imprisonment on 6/03/2024. He contends that the court failed to take into account the Twenty- One (21) months that he had spent in custody calculated from the date of arrest which was 1/06/2022. This was contrary to the provisions of Section 333(2) of the Criminal Procedure as such it is only just and fair that this Court revise the sentence to include the said period spent in custody.
ISSUES FOR DETERMINATION
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 on 6/03/2024.
ANALYSIS
The Applicant herein contends that the trial court in Githunguri Criminal Case No. E474 of 2022 while rendering its sentence failed to take into account the period of Twenty (20) months that he spent in custody contrary to the provisions of Section 333(2) of the Criminal Procedure Code.
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.”
Refer 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.”
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.
A thorough perusal of the court record and the ruling on sentence by the trial court delivered on 6/03/2025, it is noted that the Applicant was given a custodial sentence of Ten (10) years without the trial court taking into consideration the period spent in remand of Twenty (20) months. The Applicant was arrested on 1/06/2022 and sentenced on 6/03/2025 which means that he spent approximately Twenty (20) months in remand during the pendency of the trial.
In the circumstances, this Court is satisfied that the Applicant is entitled to the benefits of Section 333 (2) of the Criminal Procedure Code during the passing of sentence, and therefore, the application herein is found to have merit.
FINDINGS AND DETERMINATION
The court finds that the application has merit and it is hereby allowed. The period of One (1) year and Eight (8) months be deducted from the Applicants sentence.
Orders Accordingly.
DATED SIGNED and DELIVERED via TEAMS at KIAMBU this 1 st day of AUGUST, 2025.
MSHILA
JUDGE
In the presence of;
Sanja-Court Assistant
N/A – by Applicant
Gacharia-for the State
'
IN THE HIGH COURT OF KENYA
AT KIAMBU
CRIMINAL REVISION NO. E022 OF 2025
DAVID MICHAEL THIONGO KAMOTHO………………..APPLICANT
VERSUS
REPUBLIC………………………………………………………RESPONDENT
RULING
Before Court is an application by way of Notice of Motion dated 26 th February, 2025 and brought under Sections 333(2) of the Criminal Procedure Code and Article 165(3) of the Constitution; The Applicant sought for orders:-
THAT this Honourable Court be pleased to take account of the period the applicant spent in custody during the pendency of the trial.
THAT this Honourable Court to commute the custodial sentence to a non-custodial sentence.
Such further relief that the Court may deem fit and just to grant.
The application is grounded on the facts on the face of the application and on the applicants affidavit in support of the application; He deposed that he was charged with the offence of Being in possession of Narcotic Drugs in Githunguri Criminal Case No. E474 of 2022 and was sentenced to serve Ten (10) years imprisonment on 6/03/2024. He contends that the court failed to take into account the Twenty- One (21) months that he had spent in custody calculated from the date of arrest which was 1/06/2022. This was contrary to the provisions of Section 333(2) of the Criminal Procedure as such it is only just and fair that this Court revise the sentence to include the said period spent in custody.
ISSUES FOR DETERMINATION
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 on 6/03/2024.
ANALYSIS
The Applicant herein contends that the trial court in Githunguri Criminal Case No. E474 of 2022 while rendering its sentence failed to take into account the period of Twenty (20) months that he spent in custody contrary to the provisions of Section 333(2) of the Criminal Procedure Code.
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.”
Refer 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.”
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.
A thorough perusal of the court record and the ruling on sentence by the trial court delivered on 6/03/2025, it is noted that the Applicant was given a custodial sentence of Ten (10) years without the trial court taking into consideration the period spent in remand of Twenty (20) months. The Applicant was arrested on 1/06/2022 and sentenced on 6/03/2025 which means that he spent approximately Twenty (20) months in remand during the pendency of the trial.
In the circumstances, this Court is satisfied that the Applicant is entitled to the benefits of Section 333 (2) of the Criminal Procedure Code during the passing of sentence, and therefore, the application herein is found to have merit.
FINDINGS AND DETERMINATION
The court finds that the application has merit and it is hereby allowed. The period of One (1) year and Eight (8) months be deducted from the Applicants sentence.
Orders Accordingly.
DATED SIGNED and DELIVERED via TEAMS at KIAMBU this 1 st day of AUGUST, 2025.
MSHILA
JUDGE
In the presence of;
Sanja-Court Assistant
N/A – by Applicant
Gacharia-for the State
'