1. The Applicant herein, vide the notice of motion dated 15th August, 2025 seeks an order for the review of her 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 121 days, pending the conclusion of his trial. He was ultimately convicted on 5th October, 2022 sentenced to serve 20 years imprisonment for the offence of defilement contrary to Section 8(1) as read with 8(3) of the Sexual Offences Act by Hon. S.O. Temu, Senior Resident Magistrate.
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 taken into account by the learned trial Magistrate when imposing the sentence, as provided for under Section 333(2) of the Criminal Procedure Code.
4. 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…”.
5. 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.”
6. From the authority and the text above, the learned trial Magistrate was under the obligation to reduce the sentence proportionately by an equal period with that that the Applicant had remained in custody during his trial. The trial court should have ordered that the period of 121 days be reduced from the sentence.
7. 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 20 years imprisonment shall be reduced by 121 days. The committal warrant shall be amended accordingly.
8. This file is closed.
DELIVERED (virtually) DATED and SIGNED this 17th 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 121 days, pending the conclusion of his trial. He was ultimately convicted on 5th October, 2022 sentenced to serve 20 years imprisonment for the offence of defilement contrary to Section 8(1) as read with 8(3) of the Sexual Offences Act by Hon. S.O. Temu, Senior Resident Magistrate.
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 taken into account by the learned trial Magistrate when imposing the sentence, as provided for under Section 333(2) of the Criminal Procedure Code.
4. 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…”.
5. 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.”
6. From the authority and the text above, the learned trial Magistrate was under the obligation to reduce the sentence proportionately by an equal period with that that the Applicant had remained in custody during his trial. The trial court should have ordered that the period of 121 days be reduced from the sentence.
7. 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 20 years imprisonment shall be reduced by 121 days. The committal warrant shall be amended accordingly.
8. This file is closed.
DELIVERED (virtually) DATED and SIGNED this 17th day of March, 2026.
JOE M. OMIDO
JUDGE
APPLICANT: Present, virtually.
RESPONDENT: Ms. Muema.
COURT ASSISTANTS: Mr. Ngoge & Mr. Juma.