1. The Applicant herein, vide the notice of motion dated 10th February, 2026 seeks an order for the review of his sentence, so that the period that he spent in custody awaiting conclusion of his trial is taken into account, in line with Section 333(2) of the Criminal Procedure Code, Cap 75 Laws of Kenya, which provides that:
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.
2. I have gone through the record of the lower court and note that during his trial, the Applicant remained remanded in custody for a cumulative period of 205 days, pending the conclusion of his trial. He was ultimately convicted and thereafter on 3rd February, 2026 sentenced to pay a fine of Ksh.50,000/- in default to serve 12 months imprisonment.
3. It is clear from the record of the trial court, which is before me, that the period that the Applicant remained in custody while his trial proceeded was not properly taken into account by the trial court, as provided for under Section 333(2) of the Criminal Procedure Code.
4. In sentencing him, the trial court (Hon. L.N. Kiniale) rendered itself as follows:
“The accused is remorseful. However, given the value of the destroyed trees, I proceed to sentence him to pay a fine of Ksh.50,000/- in default to serve imprisonment for 12 months. Right of appeal 14 days.
Cash bail refunded to depositor.”
5. The Court of Appeal in Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR held that: -
““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…”.
6. The Judiciary Sentencing Policy Guidelines provides that:
“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.”
7. From the authority and the text above, the learned trial Magistrate was under the obligation to reduce the default custodial sentence proportionately by an equal period with that which the Applicant had remained in custody while awaiting the conclusion of his trial. The trial court should have ordered that the period of 205 days be reduced from the said sentence.
8. In the result, and considering the foregoing, the Applicant’s application is merited. I allow it and review the sentence only to the extent that the sentence of 12 months imprisonment shall be reduced by 205 days. The committal warrant shall be amended accordingly.
9. This file is closed.
DELIVERED (virtually) DATED and SIGNED this 18th day of March, 2026.
JOE M. OMIDO
JUDGE
APPLICANT: Present, virtually.
RESPONDENT: Ms. Muema.
COURT ASSISTANTS: Mr. Ngoge & Mr. Juma.
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.
2. I have gone through the record of the lower court and note that during his trial, the Applicant remained remanded in custody for a cumulative period of 205 days, pending the conclusion of his trial. He was ultimately convicted and thereafter on 3rd February, 2026 sentenced to pay a fine of Ksh.50,000/- in default to serve 12 months imprisonment.
3. It is clear from the record of the trial court, which is before me, that the period that the Applicant remained in custody while his trial proceeded was not properly taken into account by the trial court, as provided for under Section 333(2) of the Criminal Procedure Code.
4. In sentencing him, the trial court (Hon. L.N. Kiniale) rendered itself as follows:
“The accused is remorseful. However, given the value of the destroyed trees, I proceed to sentence him to pay a fine of Ksh.50,000/- in default to serve imprisonment for 12 months. Right of appeal 14 days.
Cash bail refunded to depositor.”
5. The Court of Appeal in Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR held that: -
““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…”.
6. The Judiciary Sentencing Policy Guidelines provides that:
“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.”
7. From the authority and the text above, the learned trial Magistrate was under the obligation to reduce the default custodial sentence proportionately by an equal period with that which the Applicant had remained in custody while awaiting the conclusion of his trial. The trial court should have ordered that the period of 205 days be reduced from the said sentence.
8. In the result, and considering the foregoing, the Applicant’s application is merited. I allow it and review the sentence only to the extent that the sentence of 12 months imprisonment shall be reduced by 205 days. The committal warrant shall be amended accordingly.
9. This file is closed.
DELIVERED (virtually) DATED and SIGNED this 18th day of March, 2026.
JOE M. OMIDO
JUDGE
APPLICANT: Present, virtually.
RESPONDENT: Ms. Muema.
COURT ASSISTANTS: Mr. Ngoge & Mr. Juma.